As we face the prospect of a necessary legal battle over the emergency called by the president in order to fund some sort of border wall on our southern border, we are driven to many thoughts, most of them anguished. Will the courts and Congress fulfill their constitutionally defined roles, or will they allow the executive branch to rule this nation, creating a president who is above the law, and thus ending democracy in the United States?
We turn for hope to many sources, including our founding principles. We were reminded of one part of the Federalist debates, in which Anti-Federalists raised the question of how to put limits on the federal government’s authority. The Federalists were in favor of giving all three federal branches just about unlimited authority to respond to future crises–as long as they honored the Constitution. The Anti-Federalists rationally countered that unlimited authority is never a good idea.
The crux of the debate lay in the Federalist position, described by Alexander Hamilton in Federalist Papers #23 and #34, that since we cannot know what dangers the nation may face in 100 or 1,000 years, we simply cannot put literal constraints on the powers given to the federal branches to protect the nation. Hamilton saw a way to make this consonant with our Constitution.
We posted about this previously in a series on the HP; read on in this re-posting to see how, and to get eerie predictions about the future from both Hamilton and the HP.
Welcome to part 3 of our series on the Federalist debates; here we see how the men who supported the new constitution answered the Anti-Federalists’ concern that the strong federal government proposed by that document would degrade the republican virtue of American citizens by weakening local government, which they could take a more active, immediate role in. The Anti-Federalists made a passionate case that corruption would follow the distancing of government from the people, and challenged the Federalists to prove them wrong.
The Federalists replied by completely ignoring the whole argument as rearranging deck chairs on the Titanic. Their response focused on foreign policy and national security. A strong central government was absolutely essential to national security, they said—there’s no point worrying about domestic citizen virtue if the United States has been destroyed by a weak foreign policy and national defense. To survive in the world, the U.S. had to be able to negotiate treaties in good faith; other nations had to believe the U.S. would obey international law and live up to the terms of those treaties. For that to happen, the U.S. had to have a strong federal government that could make sure the states lived up to the terms of the treaties. Without this mechanism for good faith negotiating, the US would open itself to invasion and dissolution.
This was no imaginary scenario in 1787. Even as the Federalist debates raged, the US was in violation of its treaty with Britain ending the Revolutionary War. In that treaty, the U.S. had agreed to either return property seized from Loyalists during the war or reimburse those Loyalists for their losses. That was not happening, because state governments were not enforcing those terms, and that was the stated reason why Britain was not removing its army from the western frontier as it had promised to do. The U.S. had also signed a treaty with Spain promising to keep US citizens east of the Mississippi River, out of the lands that would one day be the Louisiana Purchase but were in 1787 Spanish territory. Americans were moving into the regions that would become the states of Mississippi, Tennessee, and Kentucky—pressing right up to the Spanish border, and clearly intending to cross it. That could provoke a war with Spain in the west, which could activate a war with Britain in the west as well, and both countries could sweep east and divide up the nascent US between them and that would be that.
We have to have a strong federal government, said the Federalists, to enforce international treaties, deal with foreign powers to avoid war, and to organize a national defense if war cannot be avoided. A strong central government protecting the states will deter other nations from attacking individual states to pull the U.S. apart piece by piece. Of course, the “government” itself wouldn’t fight a war: the government would have to raise a standing army.
This was political dynamite to many Americans in 1787. Getting the British standing army out of America had been a major war aim, and most Americans saw a standing army—an army maintained during peacetime—as a tool of tyranny. What government would resist using its army to keep the populace down, intimidate people, and prevent them from criticizing the government? And who would pay for it—the states? They were already maintaining their state militias; why add the expense of funding a national army? Why couldn’t the US fight any future war the way it fought the Revolutionary War, by sending states militia to join together in one army until the war was over, then to return to their states? When the Federalists added that the U.S. would also have to have a strong navy, the call only confirmed suspicions that these forces would be used to tyrannize over the people, not protect the nation.
The standing army and navy also represented another problem: clearly, to create and maintain these armed forces, the federal government would have to tax the states. The Federalists did not mince words here. They said that the federal government must not only tax the states, but have an unlimited power of taxation.
Remember that under the Articles of Confederation, the federal government could ask the states for money, but could not levy a tax the states were required to pay. Remember also from part 2 of our series that the Anti-Federalists had criticized the idea of the federal government ever levying a tax, and made only the small concession that if a war came up the federal government could ask the states for money to fight it (without a guarantee that the states would pay it; they would, in fact, most likely have refused to pay it, focusing instead on beefing up their individual state defenses/militias). If the Constitution was adopted, that would radically change to allow the federal government to enforce any tax it liked in the name of national security.
The Anti-Federalist writing under the name “Brutus” (we do not know who this was) stated in his/her 8th essay:
“These powers taken in connection, amount to this: that the general government have unlimited authority and control over all the wealth and all the force of the union. The advocates for this scheme, would favor the world with a new discovery, if they would show, what kind of freedom or independency is left to the state governments, when they cannot command any part of the property or of the force of the country, but at the will of the Congress.”
Alexander Hamilton, rather than dissemble, agreed heartily. Yes, he said, the federal government will have unlimited authority over the “force” of the union, and over its wealth when it comes to preserving that union. In Federalist Paper 23, he said that because we cannot predict the future, and know what threats we may face, we have to be ready to face anything, and that means being ready to pay anything (all capitals are his, not ours):
“These powers ought to exist without limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. … And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL FORCES.”
If the threats we face as a nation are “infinite”, then our capacity to respond to those threats must also be infinite. You can’t say, We’ll allow the federal government to tax the states to raise $100K for national defense in 1788 because that’s how much we needed in 1787. You can’t even say, let’s double it to $200K just in case. You cannot ever put a limit on the power of the government to tax the states to defend the nation because then you run the risk that what you need is $700 million, and you only have $200K.
This seemed preposterous to most Americans. How could so unexpected a threat arise? What on earth was going to change to make such huge amounts necessary?
In Federalist Paper 34, Hamilton answered this by saying, I don’t know. Who knows? Who can know the future? Who can say what unimaginable threats might arise in 50 or 100 years? You have to remember, Hamilton said, that we are talking about how the US government will function not just in our lifetimes, but for hundreds or even thousands of years:
In pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. In framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense.
That is, the federal government must have the “capacity” to expand its expenditures when necessary, with no set limits. You can’t limit the government of 2014 to a certain amount of taxation because that’s what worked in 1787; we know, Hamilton says, that what works in 1787 is not going to work in 2014—it just can’t. Change is constant, and we can’t handcuff the federal government by forcing it to remain in 1787 as time marches on. We also can’t force the federal government to beg the states to approve each and every change it needs to stay current, or risk the states refusing that approval.
This Federalist argument is very much alive today. The federal government has defended NSA surveillance on the basis of anticipating threats we can’t even imagine. Some Americans believe that national security should trump personal privacy and liberty; others argue that the federal government should have to justify its actions and expenses to the public. For some Americans, no expense is too much if it is spent to protect the nation from threats real or imagined; others demand oversight of national security expenditures. Hamilton was prescient in his understanding that the definition of “threat” could change beyond all rational expectation. Whether he was right in saying the federal government must have the freedom and power to meet those threats by any means necessary is still a question in the United States today.