THE tendency of the principle of legislation for States, or
communities, in their political capacities, as it has been
exemplified by the experiment we have made of it, is equally
attested by the events which have befallen all other governments of
the confederate kind, of which we have any account, in exact
proportion to its prevalence in those systems. The confirmations of
this fact will be worthy of a distinct and particular examination. I
shall content myself with barely observing here, that of all the
confederacies of antiquity, which history has handed down to us, the
Lycian and Achaean leagues, as far as there remain vestiges of them,
appear to have been most free from the fetters of that mistaken
principle, and were accordingly those which have best deserved, and
have most liberally received, the applauding suffrages of political
writers.
This exceptional principle may, as truly as emphatically, be styled
the parent of anarchy: It has been seen that delinquencies in the
members of the Union are its natural and necessary offspring; and
that whenever they happen, the only constitutional remedy is force,
and the immediate effect of the use of it, civil war.
It remains to inquire how far so odious an engine of government, in
its application to us, would even be capable of answering its end.
If there should not be a large army constantly at the disposal of
the national government it would either not be able to employ force
at all, or, when this could be done, it would amount to a war
between parents of the Confederacy concerning the infractions of a
league, in which the strongest combination would be most likely to
prevail, whether it consisted of those who supported or of those who
resisted the general authority. It would rarely happen that the
delinquency to be redressed would be confined to a single member,
and if there were more than one who had neglected their duty,
similarity of situation would induce them to unite for common
defence. Independent of this motive of sympathy, if a large and
influential State should happen to be the aggressing member, it
would commonly have weight enough with its neighbors to win over
some of them as associates to its cause. Specious arguments of
danger to the common liberty could easily be contrived; plausible
excuses for the deficiencies of the party could, without difficulty,
be invented to alarm the apprehensions, inflame the passions, and
conciliate the good-will even of those States which were not
chargeable with any violation or omission of duty.
This would be the more likely to take place, as the delinquencies of
the larger members might be expected sometimes to proceed from an
ambitious premeditation in their rulers, with a view to getting rid
of all external control upon their designs of personal
aggrandizement; the better to effect which it is presumable they
would tamper beforehand with leading individuals in the adjacent
States. If associates could not be found at home, recourse would be
had to the aid of foreign powers, who would seldom be disinclined to
encouraging the dissensions of a Confederacy, from the firm union of
which they had so much to fear.
When the sword is once drawn, the passions of men observe no bounds
of moderation. The suggestions of wounded pride, the instigations of
irritated resentment, would be apt to carry the States against which
the arms of the Union were exerted, to any extremes necessary to
avenge the affront or to avoid the disgrace of submission. The first
war of this kind would probably terminate in a dissolution of the
Union.
This may be considered as the violent death of the Confederacy. Its
more natural death is what we now seem to be on the point of
experiencing, if the federal system be not speedily renovated in a
more substantial form. It is not probable, considering the genius of
this country, that the complying States would often be inclined to
support the authority of the Union by engaging in a war against the
non-complying States. They would always be more ready to pursue the
milder course of putting themselves upon an equal footing with the
delinquent members by an imitation of their example. And the guilt
of all would thus become the security of all. Our past experience
has exhibited the operation of this spirit in its full light. There
would, in fact, be an insuperable difficulty in ascertaining when
force could with propriety be employed. In the article of pecuniary
contribution, which would be the most usual source of delinquency,
it would often be impossible to decide whether it had proceeded from
disinclination or inability. The pretence of the latter would always
be at hand. And the case must be very flagrant in which its fallacy
could be detected with sufficient certainty to justify the harsh
expedient of compulsion. It is easy to see that this problem alone,
as often as it should occur, would open a wide field for the
exercise of factious views, of partiality, and of oppression, in the
majority that happened to prevail in the national council.
It seems to require no pains to prove that the States ought not to
prefer a national Constitution which could only be kept in motion by
the instrumentality of a large army continually on foot to execute
the ordinary requisitions or decrees of the government. And yet this
is the plain alternative involved by those who wish to deny it the
power of extending its operations to individuals. Such a scheme, if
practicable at all, would instantly degenerate into a military
despotism; but it will be found in every light impracticable. The
resources of the Union would not be equal to the maintenance of an
army considerable enough to confine the larger States within the
limits of their duty; not would the means ever be furnished of
forming such an army in the first instance. Whoever considers the
populousness and strength of several of these States singly at the
present juncture, and looks forward to what they will become, even
at the distance of half a century, will at once dismiss as idle and
visionary any scheme which aims at regulating their movements by
laws to operate upon them in their collective capacities, and to be
executed by a coercion applicable to them in the same capacities. A
project of this kind is little less romantic than the monster-taming
spirit which is attributed to the fabulous heroes and demigods of
antiquity.
Even in those confederacies which have been composed of members
smaller than many of our counties, the principle of legislation for
sovereign States, supported by military coercion, has never been
found effectual. It has rarely been attempted to be employed, but
against the weaker members; and in most instances attempts to coerce
the refractory and disobedient have been the signals of bloody wars,
in which one half of the confederacy has displayed its banners
against the other half.
The result of these observations to an intelligent mind must be
clearly this, that if it be possible at any rate to construct a
federal government capable of regulating the common concerns and
preserving the general tranquillity, it must be founded, as to the
objects committed to its care, upon the reverse of the principle
contended for by the opponents of the proposed Constitution. It must
carry its agency to the persons of the citizens. It must stand in
need of no intermediate legislation; but must itself be empowered to
employ the arm of the ordinary magistrate to execute its own
resolutions. The majesty of the national authority must be
manifested through the medium of the courts of justice. The
government of the Union, like that of each State, must be able to
address itself immediately to the hopes and fears of individuals;
and to attract to its support those passions which have the
strongest influence upon the human heart. It must, in short, possess
all the means, and have a right to resort to all the methods, of
executing the powers with which it is intrusted, that are possessed
and exercised by the governments of the particular States.
To this reasoning it may perhaps be objected, that if any State
should be disaffected to the authority of the Union, it could at any
time obstruct the execution of its laws, and bring the matter to the
same issue of force, with the necessity of which the opposite scheme
is reproached.
The plausibility of this objection will vanish the moment we advert
to the essential difference between a mere NON-COMPLIANCE and a
DIRECT and ACTIVE RESISTANCE. If the interposition of the State
legislatures be necessary to give effect to a measure of the Union,
they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is
defeated. This neglect of duty may be disguised under affected but
unsubstantial provisions, so as not to appear, and of course not to
excite any alarm in the people for the safety of the Constitution.
The State leaders may even make a merit of their surreptitious
invasions of it on the ground of some temporary convenience,
exemption, or advantage.
But if the execution of the laws of the national government should
not require the intervention of the State legislatures, if they were
to pass into immediate operation upon the citizens themselves, the
particular governments could not interrupt their progress without an
open and violent exertion of an unconstitutional power. No omissions
nor evasions would answer the end. They would be obliged to act, and
in such a manner as would leave no doubt that they had encroached on
the national rights. An experiment of this nature would always be
hazardous in the face of a constitution in any degree competent to
its own defence, and of a people enlightened enough to distinguish
between a legal exercise and an illegal usurpation of authority. The
success of it would require not merely a factious majority in the
legislature, but the concurrence of the courts of justice and of the
body of the people. If the judges were not embarked in a conspiracy
with the legislature, they would pronounce the resolutions of such a
majority to be contrary to the supreme law of the land,
unconstitutional, and void.
If the people were not tainted with the spirit of their State
representatives, they, as the natural guardians of the Constitution,
would throw their weight into the national scale and give it a
decided preponderancy in the contest. Attempts of this kind would
not often be made with levity or rashness, because they could seldom
be made without danger to the authors, unless in cases of a
tyrannical exercise of the federal authority.
If opposition to the national government should arise from the
disorderly conduct of refractory or seditious individuals, it could
be overcome by the same means which are daily employed against the
same evil under the State governments. The magistracy, being equally
the ministers of the law of the land, from whatever source it might
emanate, would doubtless be as ready to guard the national as the
local regulations from the inroads of private licentiousness. As to
those partial commotions and insurrections, which sometimes disquiet
society, from the intrigues of an inconsiderable faction, or from
sudden or occasional ill-humors that do not infect the great body of
the community, the general government could command more extensive
resources for the suppression of disturbances of that kind than
would be in the power of any single member. And as to those mortal
feuds which, in certain conjunctures, spread a conflagration through
a whole nation, or through a very large proportion of it, proceeding
either from weighty causes of discontent given by the government or
from the contagion of some violent popular paroxysm, they do not
fall within any ordinary rules of calculation. When they happen,
they commonly amount to revolutions and dismemberments of empire. No
form of government can always either avoid or control them. It is in
vain to hope to guard against events too mighty for human foresight
or precaution, and it would be idle to object to a government
because it could not perform impossibilities.
Signed "PUBLIUS"
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