Federalist 23
Federalist 23, while repeating many themes previously explored, begins in an interesting fashion: with a concession. Hamilton had consistently shilled for the more energetic government provided for by the Constitution, but allowed here that he regards the government proposed by the Constitution as possessing the the minimum amount of power he was willing to accept.
To what ends will such energy be employed? Putting aside the rhetorical and largely tautological claim that more energy was essential to Union, he identified three main purposes for the increase in energy. First, the need to build a strong and extensive military; the second, to insure “domestic tranquility” by having sufficient force to put down insurrections; and the third, the ability to regulate commerce. He did not fail in his analysis, for the accumulation and use of military power and the regulation of commerce have been the two central means by which American government has increased its power into the leviathan we witness today.
Hamilton’s reflections on building up a military are especially worth noting, particularly given the concerns the anti-federalists had about the threat to liberty posed by a standing army. Anti-federalists also noted the ways in which a standing army would militarize and coarsen social life in general. While Hamilton doesn’t use this exact phrase — it is used years later by Justice Marshall in McCulloch v. Maryland — the principle is very much in place: let the end be legitimate (that is, Constitutionally mandated) and any means to accomplish that end, so long as they are not expressly prohibited, are also legitimate.
This is where Hamilton’s argument takes a rather unexpected and controversial turn, for few would argue against providing for the common defense. One important question concerns the limits of such provision, not only because in the absence of limits one could bankrupt the country, and not only because defense procurement can unsettle both the economy and society (see Eisenhower’s “Farewell Address” and his condemnation of the military-industrial complex as contrary to a healthy republic), but also because defense can switch to offense very quickly. The anti-federalist worries about the destruction of the republic in favor of empire or "Caesarism" resulted from their carefully wrought and historically informed argument that leaders in possession of a large military cannot resist the temptation to use it for purposes other than defense. One is reminded of Madeline Albright, arguing for US involvement in Bosnia, saying to an aghast Colin Powell: "What's the point of having this superb military that you're always talking about if we can't use it?"
While Hamilton didn't argue in favor of using a military to play offense, he did aver that we could never imagine the circumstances under which defense might be required, and for that reason we ought to place no limits on military build-up.
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. [Emphasis in original]
As if to add insult to injury, Hamilton dismissed naysayers as lacking his “correct and unprejudiced mind” and whose arguments only obscured the issues at hand. Hamilton allowed that one might think that the federal government should not have the power to provide for the common defense, but once the principle was allowed all bets were off.
In a repeat of his argument in 22, Hamilton complained that the states would not do their fair share in achieving collective security. Granted, the experience during the war, referred to by Hamilton, confirmed some of his fears. But rather than thinking through ways to insure compliance among the members, Hamilton repeated his claim that the only possible solution was for the federal government to be able to exercise its powers directly upon citizens, removing the states as an intermediary.
Lamenting the fact that recalcitrant citizens insisted that the new government remained “a compound instead of a simple, a confederate instead of a sole, government,” Hamilton nonetheless insisted that the limitations imposed by divided sovereignty could be transgressed by expanding the objects of the federal government's authority. The states may prove a burdensome counter-weight, but less so if the Constitution expanded the area of authority. When it comes to both arms and commerce, the federal government had to “possess all the authorities which are connected with [these] object[s].” Not to give the federal government the power to achieve these ends, with all the future permutations, would “be to violate the most obvious rules of prudence and propriety.”
Only when those deputized to attend to the interests of the whole, not beholden to any of the parts, could “uniformity and concert in the plans” of government be achieved. Granted, Hamilton had a point: to give one authority power but another control over the means does seem to violate canons of common sense. But the anti-federalists thought this an important check on government, much in the same way that giving Congress the power to legislate but not the ability to implement or enforce is a check on legislative power. Then, too, in their minds the successful accomplishment of the revolution proved that the militia system worked.
The gist of Federalist 23 is Hamilton’s repeated complaint that federal power ought not be contained or confined. Rather than seeing other institutions as checks upon federal power, Hamilton envisioned the plebiscite as sufficient to the task. In the meantime, according to Hamilton, the opponents were guilty of “inflammatory declamations and unmeaning cavils” and had no “satisfactory argument” that the powers of the federal government were too extensive. Here, as in other places, the question redounded to an essential disagreement: is the Constitution an expression of unity or an instrument for it, and if the latter does it operate on free assent or coercive power? And again: to what degree can republicanism be scaled over a continent? The logic of the anti-federalist position, according to Hamilton, would resolve into separate confederacies, an idea repugnant to his tastes and interests. Anti-federalist skepticism concerning both scale and the positing of power, he believed, was not only empirically false but irrational. We can either be a consolidated nation or separate confederacies, but if national interest means anything then the federal government should be the repository of power.
This, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the Union of so large an empire. If we embrace the tenets of those who oppose the adoption of the proposed Constitution, as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present Confederacy.
The tension of the moment remains palpable. Some remain skeptical that the “national system” Hamilton advocated for and helped bring into being, this “large empire,” adequately protects the freedoms our Founders cherished. The forces of empire, once unleashed, are not easily brought back to heel.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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