Federalist 21
After Madison’s digression into history in the previous three papers, Hamilton returns his attention in Federalist 21 to what he regards as the greatest flaws of the government under the Articles of Confederation: its inability to enforce its own laws and to raise revenues. In both instances the solution lay in the federal government having the ability to bypass the sovereignty of the states in order to impose its power directly upon individual citizens. Keep in mind that republican theory insisted that representation required proximity because only by keeping those who ruled close at hand could transparency and accountability, and thus limits on power, be assured. As power became more distant it would also whittle away at the limits required by liberty.
The notorious French writer Michel Foucault argued that political power in the modern world had two aspects to it: it was capillary, by which he meant that it flowed from a central source in the most minute manner to all its parts; and it was pastoral, by which he meant that such detailed flowing of power was understood to be life-giving. In Constitutional terms we might state it this way: yes, more and more power is being given to and thus resulting from the central government, but it’s for your own good. The anti-federalists, understanding well this underlying logic, also understood the nature of the threat to liberty, both in its sense of people running their own lives and also in their ability to participate directly in the practices of governing.
The system of governance under the Articles of Confederation, many anti-federalists agreed, was wanting in terms of the ability of the federal government to exercise some necessary powers, but that system also provided important safeguards for liberty. The key was the retaining of political power in the systems of government nearest to where people actually lived. They didn’t live in “The United States” except in an abstract way (even Hamilton, in Federalist 21, uses “United States” as a plural noun), but rather lived in neighborhoods and villages and towns and cities. These were not merely identifiers of location but ways of life and systems of governance that served two important functions: they pulled people out of the privacy of their homes into participative public lives, and they sheltered people against the arbitrary machinations of distant power. In other words, local and state governments were not simply more representative modes of self-government, they were also bulwarks that protected people against imperious power. Whatever the weaknesses of the Articles of Confederation, many of the anti-federalists recognized that this transferring of power from the near-at-hand to the far-away would breach the carefully built dikes that kept people safe from the waters of power and ambition. They worried that innovative weakening of these well-established and time-honored institutions would produce nefarious and unintended consequences. One should move cautiously when altering what custom and habit have established. Such alterations might produce good results but more often than not bad ones, and in any case the innovators only promise benefits without an honest tallying of costs. Accepting change simply on the basis of promissory notes is a fools' errand.
The central promissory note, that it could be possible to increase the power of the federal government without decreasing the power of state and local governments, was taken by many of the Constitution's critics to be obviously counterfeit currency. In any case they warned that, given the limits of human knowing and the meanness of human impulses, the full range of effects couldn't possibly be known, and that some of the effects that could be known were hardly worth endorsing. In politics no single action produces a single effect; rather, it produces some effects that can be reasonably anticipated, some salutary and some not, and thus requiring prudence to weigh them in the balance, and many unanticipated effects. In some ways, what divides people politically is how they regard the unintended consequences of policy-making and the degree to which they worry about them. Many of the anti-federalists, skeptical of the claim that national power could be increased without a concomitant decrease in the power of state and local governments, saw this transferring of power as a weakening of the bulwarks of liberty; or, put another way, as eliminating the most important buffers that both insured participation but also protected people against arbitrary power. Hamilton’s claim that the new government under the Constitution would bypass the states and exercise its powers directly on citizens did little to reassure them.
An analogy might be to think about the difference between Catholic and Protestant theology and practices (in a kind of idealized form). In the Catholic tradition, there are many institutions and practices that mediate the believer’s relationship to God. The sacerdotal mode of church authority, the feasts, the liturgies, the sacraments, the rituals, the authority of tradition — all are ways of both structuring the believer’s expression of faith but also of making real in the life of the faithful the presence of an otherwise distant and awe-inspiring God.
In Luther’s recasting of the life of faith the individual believer is left in fear and trembling in the presence of this God with none of the comforts provided by all these mediating forces. Faith becomes more precarious, the freedom of the Christian more tenuous, the experience of faith itself more confusing and less disciplined. Luther’s “priesthood of all believers” may have been an essential moment in the development of modern notions of equality, but the German theologian understood the psychic cost that would be paid for such liberation. Indeed, protestantism may also be understood as having changed our notions of what liberty entails: not so much participation in the forming of a common life but emancipation from corrupt and restrictive institutions that prevent us from becoming our true selves. "Here I stand; I can do no other." The distant, awe-inspiring power of God grinds those mediating institutions into the dust, but now we are horribly vulnerable, face-to-face with that power and in a relationship only maintained by the thin thread of faith.
The anti-federalists emphasized the importance of the state and local governments in this two-fold sense of disciplining liberty for responsible participation and as providing a buffer from the exercise of a distant and unknown power. Hamilton regarded such views as little more than an “inordinate pride of state importance.” In his view, the attachment to the state and local governments was an atavism that would soon be swept away by the rising waters of the new science of politics he discussed in Federalist 9. The real revolution lay in altering people’s attachments, and those could be unshackled and reset by a national government that administered itself according to these new principles, and this dual process could only occur if it operated its powers directly upon citizens. And this led to the second important area of disagreement: Publius upended the traditional republican view that leaders had to be virtuous, arguing instead that they only had to be skilled in the new science of politics.
Hamilton was not unaware of the ways in which liberty under the old republican system could result in a kind of anarchy. In 21 he raised for the first time what is often taken to be the animating event behind the creation of the new Constitution: Shays' Rebellion. In the typical telling of the story Daniel Shays, a Massachusetts farmer and former soldier, led a violent uprising against the government in protest of its taxation and economic policies. The inability of the government to pay its soldiers and also to put down the insurrection proved the weakness of the government and thus demonstrated the need for a new one. Hamilton, in the middle of Federalist 21, drew our attention to Shays' Rebellion before turning his attention to the power of taxation.
The schoolroom reading of Shay’s Rebellion — the catalyst that proved the need for a stronger central government — has undergone a welcome revision by historians of late. For one thing, historians now mostly agree that Shays' role as well as his supposed demagoguery have been overstated and that the participants in the rebellion had legitimate grievances. Charles Zug in his recent Demagogues in American Politics argued against the standard historical interpretation of the Constitution whereby the convention was convened precisely to address the problem of demagoguery as it manifested itself in Shays’ Rebellion. Taking this issue head-on, Zug devotes an entire chapter to the rebellion, its effect on our constitutional system, and how it has been interpreted. We have, Zug argues, “no good reason to believe” that Daniel Shays possessed any of the negative characteristics or actions attributed to him. Zug reasonably assumes that Shays and his compatriots had legitimate complaints that resulted from systemic failures in the Massachusetts legislature that gamed the system in favor of creditors. If one assumes that Shays was responding to structural failures in the political and economic systems of Massachusetts whereby those who governed could bend the law to their economic advantage, then Shays looks more like a reformer than a rebel. Our understanding of Shays, Zug says, is shaped by immediate caricatures of him as presented by notable figures such as John Adams, who “had begun to work on his anti-Shays tract before it was discovered that Shays was the man to blame.” After all, it’s not as if Adams had no interest in defending the system as it was, and thus “slandering” Shays (Zug’s word) served Adams’ own political ends. The reaction against Shays thus amounted, says Zug, to little more than “scapegoating and demonization.” In other words, Shays’ critics were more guilty of illegitimate demagoguery than he was.
Office-holders in a Constitutional democracy will always be tempted to see emergencies and declare crises. The use of emergency powers becomes the central tool in the bad demagogue’s toolbox. Were this all there was to the story Zug’s argument would be interesting enough. He further argues that the Constitution was not designed to avoid repeats of Shays’ Rebellion, but rather to address the underlying systemic issues. Publius doesn’t make many references to Shays’ Rebellion, but in a most pointed one in Federalist 74 Hamilton observed that the “sedition” that had lately happened in Massachusetts confirmed the suspicion that “the representation of the people [was] tainted with the same spirit which had given birth to the offense.” Hamilton’s subsequent defense of the pardoning power predicated itself on the likelihood that sensible people, having dealt with the same government failures, would have sympathy for the insurgents. Given the breadth of support for Shays and his fellows (most of whom were pardoned), the rebellion itself became an occasion to reframe and recommit to the public good. “In this interpretation, rather than embracing the moralistic conception of demagoguery as espoused by the elites who were responsible for Shays’ erroneous reputation, the Constitution was instead designed to address the structural factors that were deemed responsible for that very insurgency,” most notably, according to Zug, in excluding “lower-class citizens…from the political process by preventing them from voting.”
This introduction of the relationship between social and economic classes and the uses of government power to produce results beneficial to one over the other are, of course, still very much with us today. The standard interpretation of Shay’s Rebellion was that federal power was required to contain it and keep the impulses from spreading to other states, but an argument could be made that the exact opposite happened. If the central animating principle of the federal plan was that it would prevent class divisions from infecting politics, making it impossible for one class to bend the instruments of government to its purposes — because of the natural checks provided by factionalism, because of its mechanistic operations, and because of its proper administration by experts — it can only be judged a failure. What it has done instead is spread the discontent over a larger territory thus making it even more difficult to contain its violent expression and increasing the government’s capacity for forceful, even preemptive, restraint. People may find soon enough they have no place of refuge from such reciprocal oppressions.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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