Mini-Federalist #16 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #16, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_16.html

Originally published December 4, 1787 by “Publius” – who was in this case, Alexander Hamilton.

We aren’t the only confederacy to fall into the trap of only making laws for the member states, and not for individuals. All of the previous ones that we know of did this in some capacity. I’m going to lay this all out because I think it’s worth remembering. Before I do though, I’ll say that the Lycian and Achaean confederacies (by all indications we have) seem to have done this the least, and they are (not coincidentally) the most highly-regarded of the ancient confederacies.

This error in thinking leads directly to anarchy. Like I explained in the last paper, it is natural for the states to ignore the laws of the central government. When that happens, the only eventual outcome is military enforcement by the central government against the states – in other words, civil war.

But would military force be enough to get it done? If we don’t have a standing army, this enforcement won’t happen often, and even if it does, it will result in the individual States choosing sides, and the more powerful side will win (regardless of whether it is the pro-union side or not). It’s extremely unlikely that this would only affect one State – it will probably be a group of them who ignore the Federal power – so they will naturally form an alliance. Smaller States that are on the fence could get drawn into the conflict by a larger, more powerful neighbor (many times using less-than-honorable or less-than-truthful justifications – especially if those larger States are in the anti-union camp). States that can’t find allies here will surely look to foreign nations for support (and you know they’d be happy to see us squabbling amongst ourselves). This will snowball out of control quickly, and the Union will be lost.

This shows only the potential “violent” death of the Union, though. Right now, we seem to be on the edge of a different kind of dissolution. Our States are wise and friendly enough that they will not immediately jump to war – instead, they will just get tired of fighting to maintain the Union by themselves and will drop their participation to the level of the least-participating State. In that scenario, since every State is guilty of ignoring the Federal government, who is going to decide which State to employ military force against? Even so, how could you determine which States don’t have the resources to participate, and which simply don’t want to? It would be impossible to tell, and whichever faction gains control of the central government would be free to use force against whichever States they wanted.

It seems pretty obvious that a government like this – with a standing, roving army to enforce even it’s most basic provisions, is NOT what we want. But this is exactly the kind of government opponents of the Constitution would lead us to. Even if this was an idea that could be accomplished, it would end up as a police state. It’s a nonstarter, though. We simply don’t have the means to maintain an army the size we’d need to be able to enforce Federal rules against the larger States. This is mythical, David and Goliath-type stuff here!

Historically, even smaller confederacies haven’t had success with military force against disobedient states. It was only used against the weakest states, and most of the time led to terribly destructive civil wars where every state took sides against the others.

All of this evidence points to an obvious conclusion: if our government is to succeed, it can’t have influence over only the States (as our opponents believe) but must be able to govern citizens as individuals. Not relying on the States, it must have the power to enforce its own laws. Any powers entrusted to the Federal government must come with the power to enforce those powers – just like the States have.

Of course, some of our opponents might say that we could still end up in a situation where the States get in the way, and we’re right back to military force again.

But there is a difference between non-compliance and active resistance. If our system requires the States’ participation in order to have the federal laws enforced, then the States can render the federal government utterly toothless by simply not doing anything. This inaction could easily be disguised as a lack of resources or ability by corrupt state leaders. In this situation, the people wouldn’t necessarily know that the Federal government is being actively fought against.

If we set the government up so that the Federal government can enforce its own laws with the people directly, then any resistance by the States would be plainly seen as the unconstitutional intrusion that it is. The States wouldn’t be able to get away with such encroachments anymore unless all the people, courts, and other States went along, too.

What about a group of individuals in rebellion? We can handle that the same way we do today – the courts can handle enforcement for the federal as well as the State laws. Better still, the Federal government can bring a lot more resources to bear against rebellious groups than any one State could hope to. If one of these disturbances spread nationwide (which doesn’t happen often) it would basically amount to a revolution and break-up of our government, and there’s no way for any government to fully prevent that from happening. Since those events would be rare and impossible to control, we shouldn’t judge the proposed Constitution on whether it can deal with them.