ALEXANDER HAMILTON

(1757-1804)

THE FEDERALIST

NUMBER XXI

FURTHER DEFECTS OF THE PRESENT

CONSTITUTION

Having in the last three numbers 10 taken a summary review of the principal circumstances and events which depict the genius and fate of other confederate governments, I shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. To form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease.

been the subject of much plausible animadversion, and severe criticism. If we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude that the United States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. It will appear, from the specimens which have been cited, that the American confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world.

The want of a mutual guarantee of the state governments is another capital imperfection in the federal plan. 20 There is nothing of this kind declared in the articles that compose it; and to imply a tacit guarantee from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion, from the like considerations. The want of a guarantee, though it might in its consequences endanger the union, does

ence, as the want of a constitutional sanction to its laws.

The next most palpable defect of the existing confederation is the total want of a sanction to its laws. The United States, as now composed, have no power to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension 30 not so immediately attack its existor divestiture of privileges, or by any other constitutional means. There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the states, it must be by inference and construction, in the face of that part of the second article 40 by which it is declared, "that each state shall retain every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled." The want of such a right involves, no doubt, a striking absurdity; but we are reduced to the dilemma, either of supposing that deficiency, preposterous as it may seem, or of contravening or explaining away 50 a provision which has been of late a repeated theme of the eulogies of those who oppose the new constitution; and the omission of which, in that plan, has

Without a guarantee, the assistance to be derived from the union, in repelling those domestic dangers which may sometimes threaten the existence of the state constitutions, must be renounced. Usurpation may rear its crest in each state, and trample upon the liberties of the people; while the national government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succour could constitutionally be afforded by the union to the friends and supporters of the government. The tempestuous situation, from which Massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. Who can determine what might have been the issue of her late convulsions, if the malcon

tents had been headed by a Cæsar or a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York?

The inordinate pride of state importance has suggested to some minds an objection to the principle of a guarantee in the federal government, as in- 10 volving an officious interference in the domestic concerns of the members. A scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. It could be no impediment to reforms of the state constitutions by a majority of the people in a peaceable and legal 20 mode. The right would remain undiminished. The guarantee could only operate against changes to be effected by violence. Towards the prevention of calamities of this kind, too many checks cannot be provided. The peace of society, and the stability of government, depend absolutely on the efficacy of the precautions adopted on this head. Where the whole power of the 30 government is in the hands of the people there is less pretence for the use of violent remedies, in partial or occasional distempers of the state. The natural cure for an ill administration, in a popular or representative constitution, is a change of men. A guarantee by the national authority would. be as much directed against the usurpations of rulers, as against the 40 ferments and outrages of faction and sedition in the community.

The principle of regulating the contributions of the states to the common treasury by quotas, is another fundamental error in the confederation. Its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. I speak of it now solely with a view to equality among the states. Those who have been accustomed to contemplate the circum

50

stances which produce and constitute national wealth, must be satisfied that there is no common standard, or barometer, by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of state contributions, has any pretension to being a just representative. If we compare the wealth of the United Netherlands with that of Russia or Germany, or even of France; and if we at the same time compare the total value of the lands, and the aggregate population of the contracted territory of that republic, with the total value of the lands, and the aggregate population of the immense regions of either of those kingdoms, we shall at once discover that there is no comparison between the proportion of either of these two objects, and that of the relative wealth of those nations. If the like parallel were to be run between several of the American states, it would furnish a like result. Let Virginia be contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and we shall be convinced that the respective abilities of those states, in relation to revenue, bear little or no analogy to their comparative stock in lands, or to their comparative population. The position may be equally illustrated by a similar process between the counties of the same state. No man acquainted with the state of New York will doubt that the active wealth of King's County bears a much greater proportion to that of Montgomery, than it would appear to do, if we should take either the total value of the lands, or the total numbers of the people as a criterion.

The wealth of nations depends upon an infinite variety of causes. Situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens; the degree of information they possess; the state of commerce, of arts, of industry; these circumstances, and many more too complex, minute, or adventi

tious, to admit of a particular specifi-
cation, occasion differences hardly
conceivable in the relative opulence
and riches of different countries. The
consequence clearly is, that there can
be no common measure of national
wealth; and, of course, no general or
stationary rule, by which the ability
of a state to pay taxes can be deter-
mined. The attempt, therefore, to 10
regulate the contributions of the mem-
bers of a confederacy by any such rule,
cannot fail to be productive of glaring
inequality and extreme oppression.

of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. Or if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised.

It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit, which cannot be exceeded without defeating the end proposed— that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that "in po20 litical arithmetic, two and two do not always make four." If duties are too high, they lessen the consumptionthe collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds.

This inequality would of itself be sufficient in America to work the eventual destruction of the union, if any mode of enforcing a compliance with its requisitions could be devised. The suffering states would not long consent to remain associated upon a principle which distributed the public burthens with so unequal a hand; and which was calculated to impoverish and oppress the citizens of some states, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. This, however, is an evil inseparable from the principle of quotas 30 and requisitions.

This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them.

Impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. Those of the direct kind, which principally relate to lands and buildings, may admit of a rule of apportionment. Either the

There is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and in general all duties upon articles of consumption, may be compared to a fluid, which will in time find its level with the means of paying them. The amount to be 40 value of land, or the number of the contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal. And private oppression may always be avoided by a judicious selection of objects proper for such impositions.

If inequalities should arise in some states from duties on particular ob- 50 jects, these will, in all probability, be counterbalanced by proportional inequalities in other states, from the duties on other objects. In the course

people, may serve as a standard. The state of agriculture, and the populousness of a country, are considered as having a near relation to each other. And as a rule for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. In every country it is an Herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. The expense of an accurate valuation is in all situations a formid

Several states have endeavoured, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular; but the want of concert, arising from the want of a general authority, and from clashing and dissimilar views in the states, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to an uniformity of measures continue to exist.

The want of a power to regulate commerce is by all parties allowed to be of the number. The utility of such a power has been anticipated under the first head of our enquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. It is indeed evident, on the most superficial 30 view, that there is no object, either. as it respects the interests of trade or finance, that more strongly demands a federal superintendence. The want of it has already operated as a bar to the formation of beneficial treaties with foreign powers; and has given occasions. of dissatisfaction between the states. No nation acquainted with the nature of our political association would be 40 states exact upon the merchandizes

unwise enough to enter into stipulations with the United States, conceding on their part privileges of importance, while they were apprised that the engagements on the part of the union might at any moment be violated by its members; and while they found, from experience, that they might enjoy every advantage they desired in our markets, without granting us any 50 return, but such as their momentary convenience might suggest. It is not therefore to be wondered at, that Mr. Jenkinson, in ushering into the House

The interfering and unneighbourly regulations of some states, contrary to the true spirit of the union, have in different instances given just cause of umbrage and complaint to others; and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord, than injurious impediments to the intercourse between the differents parts of the confederacy. "The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and

passing through their territories; by means of which the fine streams and navigable rivers with which Germany is so happily watered, are rendered almost useless." Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of state regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.

The power of raising armies, by the
most obvious construction of the arti-
cles of the confederation, is merely a
power of making requisitions upon the
states for quotas of men.
This prac-

tice, in the course of the late war, was
found replete with obstructions to a
vigorous and to an economical system
of defence. It gave birth to a com-
petition between the states, which 10
created a kind of auction for men. In
order to furnish the quotas required
of them, they outbid each other, till
bounties grew to an enormous and in-
supportable size. The hope of a still
further increase afforded an induce-
ment to those who were disposed to
serve to procrastinate their enlistment;
and disinclined them from engaging for
any considerable periods. Hence slow 20
and scanty levies of men in the most
critical emergencies of our affairs-
short inlistments at an unparalleled ex-
pense continual fluctuations in the
troops, ruinous to their discipline, and
subjecting the public safety frequently
to the perilous crisis of a disbanded
army. Hence also those oppressive ex-
pedients for raising men which were
upon several occasions practised, and 30
which nothing but the enthusiasm of
liberty would have induced the people
to endure.

This method of raising troops is not
more unfriendly to economy and vigour,
than it is to an equal distribution of
the burthen. The states near the seat
of war, influenced by motives of self
preservation, made efforts to furnish
their quotas, which even exceeded their 40
abilities; while those at a distance from
danger were for the most part as re-
miss as the others were diligent, in
their exertions. The immediate pres-
sure of this inequality was not in this
case, as in that of the contributions
of money, alleviated by the hope of a
final liquidation. The states which did
not pay their proportions of money,
might at least be charged with their 50
deficiencies; but no account could be
formed of the deficiencies in the sup-
plies of men. We shall not, however,
see much reason to regret the want of

this hope, when we consider how little prospect there is that the most delinquent states ever will be able to make compensation for their pecuniary failures. The system of quotas and requisitions, whether it be applied to men or money, is in every view a system of imbecility in the union, and of inequality and injustice among the members.

The right of equal suffrage among the states is another exceptionable part of the confederation. Every idea of proportion, and every rule of fair representation, conspire to condemn a principle which gives to Rhode Island an equal weight in the scale of power with Massachusetts or Connecticut or New York; and to Delaware, an equal voice in the national deliberations with Pennsylvania or Virginia or North Carolina. Its operation contradicts. that fundamental maxim of republican government which requires that the sense of the majority should prevail. Sophistry may reply that sovereigns are equal, and that a majority of the votes of the states will be a majority of confederated America.1 But this kind of logical legerdemain will never counteract the plain suggestions of justice and common sense. It may happen that this majority of states is a small minority of the people of America; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger states would, after a while, revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. Considering how peculiarly the safety and welfare of the smaller states depend on

New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland, are a majority of the whole number of the States; but they do not contain one third of the people. [Hamilton's note]