Federalist 22

In Federalist 22 Hamilton reviews and repeats some of his earlier arguments concerning commerce and the need for a central authority that regulates and sets uniform standards. Without the imposition of such, some states would be “unneighborly” and interfere in the business doings of other states, creating animosity and discord that would result in either complete dissolution or war. Or both. For that reason, Hamilton also returns to his theme of the need for a standing army, for without it different states would have different incentives to contribute to a wartime militia, one perpetually understaffed, underfinanced, and undisciplined. Some states would be like NATO countries that don’t contribute their fair share to collective security.

We've already touched on those arguments, but at that point in the essay Hamilton takes a rather unexpected turn: he inveighs against the idea of the states having equal representation (such as in the Senate or in the ratification process). This position flows logically from his earlier argument that the federal government should draw its powers from and exercise them on citizens directly. It would then make sense to have representation operate purely on principles of population. The idea that each state would get an equal vote violated Hamilton’s mathematical sensibilities and also his idea of sovereignty. In 22 we get a restating of the argument Hamilton had made at the Constitutional Convention on June 18th (one of the single most important days of the convention). In that lengthy speech, according to Madison’s notes, Hamilton “was particularly opposed to that [plan] from N. Jersey, being fully convinced, that no amendment of the Confederation, leaving the States in possession of their Sovereignty could possibly answer the purpose.” [emphasis added] Hamilton’s notes indicate that Madison captured his idea quite well.

Hamilton’s argument against giving each state a vote rests on the math whereby 1/3 of the population could effectively block the will of 2/3. Even then, the smaller states would not be operating in their best interests as Hamilton understood them.

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. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration.

The Constitution is filled with anti-majoritarian measures for the simple reasons that majorities can be just as tyrannical, if not more so, than any one person. One way to combat the power of majorities is to require super-majorities, and the higher the stakes (typically) the greater the demand for a super-majority. The Constitution requires ¾ of the states (note: not population) for its ratification; ¾ of the states are needed to amend the Constitution; 2/3 of Congress is required to overturn a presidential veto; the Court can use the Bill of Rights to frustrate the majority’s will.

Hamilton looks ahead as well, believing that as the nation grows it should alter downward the ratio of votes needed to pass major resolutions. Here, Hamilton deals directly with the issue that had concerned Madison in Federalist 10 as well as many thinkers of the era -- namely, the problem of majority rule and the inability to place restraints on it -- but seems unconcerned by it. “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to the lesser.” Here we have brought into relief one of the central issues in constitutional government: on the one hand it is difficult to see how democracy can work without some principle like majority rule, while on the other hand we know that majorities not only can make bad decisions but they can also perpetrate horrible injustices. Limiting the scope of decision-making and the exercising of power is one way to deal with that problem, and another is to load the system with anti-majoritarian measures. I think the fact that the Constitution contains such anti-majoritarian measures is why Hamilton, on the last day of the convention, lamented that he was putting his name to a document whose “views were very far” from his own.

Granted, Hamilton was also responding to what he regarded as the biggest bug in the “Articles of Confederation”: namely, that one state, such as pesky Rhode Island, could frustrate the designs of all the others. Thus a small portion of the population could “embarrass the administration … destroy the energy of the government, and … substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.” The sense of the “smaller” would overrule the opinions of the “greater” part of the whole, and this Hamilton regarded as an absurdity that would render the government, in one of his favorite words, imbecilic. The result, however, was to identify the interests of the whole with the interests of a majority part, such identification being a constant source of worry for Madison, Hamilton's fellow author.

Here’s another central problem being addressed: what kind of tradeoffs are you willing to accept when it comes to the granting of authority? Gerald Ford observed (he may or may not have been the first) that “a government that is big enough to give you everything you want is big enough to take away everything you have.” Once a power is granted, the anti-federalists insisted, it ratchets in only one direction. History affords little hope that people holding power would do anything other than try to increase it. Brutus observed that "it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way." For that reason, many of the anti-federalists claimed that they were willing to not have good things done, which are always debatable anyway, in order to avoid having bad things done. This is especially true when we consider that, given the limits of knowing and adjusting for normal levels of depravity, our good intentions don’t count for much. Hamilton inverts this reasoning when it comes to the hunchbacked powers of the federal government, noting that requiring supermajorities will mean “much good may be prevented” and “much ill may be produced” when we hinder “the doing of what may be necessary” by keeping power “in the same unfavourable posture.”

At this point Hamilton pursues a high-risk rhetorical strategy: he compares a constitutional republic that places restraints on majorities unfavorably to a monarchy. Hamilton was often accused of being a closet monarchist, but there is little in this essay that remains in the closet. He’s pretty fully out. The preference for monarchy has to do with the possibility of foreign interferences, and in particular foreign countries leveraging small states against larger ones. “An hereditary monarch,” on the other hand, “has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state.” History, Hamilton believed, provided few examples of monarchs selling out to foreign powers, but ample ones of republics doing so. In republics, leaders might find “compensations for betraying” the trust of their fellow citizens, unless they possess “minds animated and guided by superior virtue.” This, of course, was the anti-federalist recipe for good government, and while Madison had offered a complicated and mechanistic system of checks and balances as an alternative, Hamilton seems content with letting majorities hold sway, in part on the assumption that no group that large could be swayed by the temptations of foreign corruption, patriotic seeds being planted both deeply and broadly, nor would foreign leaders have the means at their disposal to win over large masses.

I mentioned earlier that the Court system, particularly in its interpretation of the Bill of Rights, acts as a fundamental counter-majoritarian measure in our constitutional system. Hamilton concludes his argument in 22 by claiming that Article III establishing the federal judiciary is one of the great improvements offered by the Constitution. I will have more to say about this later, but the fundamental principle at work in his idea of a federal court is insuring uniformity by resolving the differences and variations in law that occur in different times in different places.

There are endless diversities in the opinions of men. We often see not only different courts but the judges of the same court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

Here, too, the problem of divided sovereignty troubles Hamilton, for under that principle, he believed, the whole was always subordinate to the parts. He mentioned above the difference of opinions that pertain in any polity, and quickly identifies their source: the dispersion of power, authority, and affection across the American landscape. “There will be,” he announced, “much to fear from the bias of local views and prejudices, and from the interference of local regulations.”

The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?

Perhaps nowhere in The Federalist does Hamilton make clearer his view that the Constitution is not to be understood as a compact among the states, but rather as an emanation from the American people themselves. He understood the implications of the former position: that if states are parties to the compact, they would retain the authority to withdraw from it. Granted, he regards such a view as a political “heresy,” but also allowed that “the doctrine itself has had respectable advocates.” But he’d have none of it. The Constitution needed firmer footing than the consent of the states; it needed to be more than a compact. Only from a singular expression by the undifferentiated mass of people, untethered from their connections to state and local governments, could a properly energetic and worthy government be constructed. “The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.” Not only flow from, but also flow back upon.

By Jeff Polet

Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation

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