Federalist 21 provides our first (or one of the first) direct attack(s) on the Articles of Confederation; namely, the Articles’ failures to establish sanctions against disobedient states or a federal guaranty, and the Articles’ system of states’ contributions to the treasury via quotas. Perhaps we’ll come back to the guaranty and tax issues. For now, though, let’s think about sanctions and Article 2 of the Articles of Confederation.
With the buildup to the direct attacks on the present system, I wondered how the Articles would be introduced to the Federalists audience. It’s interesting, then, that Hamilton unceremoniously brings AoC Article 2 without a general introduction to the Articles. To be sure, his readers lived under the Articles and needed an introduction as much as we do to the Constitution. Still, with the history lesson that preceeded this essay, I thought we might get something. Rather, Hamilton slides in this quote:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
Hamilton brings out Article 2 while bemoaning the inability of states to sanction other states that rang on agreements. Indeed, he suggests, without mapping it out, that this passage is the sole potential source (“by inference and construction”) of authority for states to “use force against delinquent members.” On a hunch, the argument goes like this: the Articles of Confederation do not delegate authority to the United States (central government) to sanction disobedient states; thus, the “power, jurisdiction, and right” to enforce interstate agreements lies with each state. Hamilton, though, presents the notion in order to dismiss it – apparently states were not sanctioning each other pursuant to the AoC.
The Articles’ have an image problem of being chili without heat – that is the basic setup to any Constitutional history of law course. Apart from the truth of the presumption, I’m curious if it was a given for Hamilton’s audience. Or, did the Federalists win a PR battle that set the paradigm for US history courses to come.
Putting aside F21′s argument, I appreciate the essay for reminding me of the similarity between the above noted the Article 2 of Confederacy and the 10th Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Hamilton’s quick, albeit dismissive, evocation of Article 2–that it can be interpreted, that an important power or right can be teased out–is familiar to today’s reader. We are quite used to agreeing or disagreeing with the Court’s expansive or restrictive interpretations, often of the initial amendments capped with Number 10. As such, Hamilton allusion to what I suppose was an existing debate about the boundaries of Article 2′s scope has me wondering: how much pre-Constitutional debate did we have that mirrored Constitutional debate (scope, interpretation, textualism…was there debate over a ‘living’ Articles of Confederation)?
July 28, 2009 at 7:39 pm
Compare:
“All communities divide themselves in the few and the many. The first are the rich and well-born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct permanent share in the government. . . . Can a democratic assembly who annually revolve in the mass of the people be supposed steadily to pursue the public good? Nothing but a permanent body can check the imprudence of democracy.”
with:
“Where the whole power of the government is in the hands of the people, there is the less pretence for the use of violent remedies, in partial or occasional distempers of the State.”
The first quote is from Hamilton’s speech at the Constitutional Convention in the summer of 1787. The second quote is Hamilton again, writing in F21 on 12/12/1787, only a few months later. Interesting comparison. I wonder if he underwent a change in his political thinking, or if these two quotes don’t seem irreconcilable to his mind?
(Source of first quote: “A People’s History of the United States” by Howard Zinn, which I just finished, and would tentatively recommend so long as you read it knowing the author is not trying to be particularly objective.)