Conservatives vexed to discover Congress has power of taxation

Well, not all of them. But some of them. Take this tweet, for example:

Which, well, yes.

The second-most-trafficked blog post I've ever written here is one I wrote while reading The Federalist Papers.  It's where I dive deep to discover that the Founders intended that Congress have unlimited power of taxation.  Now they obviously didn't expect that it would be used in unlimited fashion, but they were very specific that the power had to be unbounded. Here's one Constitutional case where we don't have to speculate about their intent, because they told us.

Here is Alexander Hamilton in Federalist 31:

As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community. 

As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.
As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.

The lack of limits, I think, suggests that the federal government indeed has the power to tax anything that moves. And anything that doesn't move.

I suppose you can argue that taxing people in order to encourage them to buy health insurance doesn't qualify as an "ordinary mode"--but as Chief Justice John Roberts noted in today's opinion upholding the Affordable Care Act, government uses tax policy to encourage and discourage all sorts of behaviors. That horse is out of the barn, and with the full-throated support of a good number of Republicans.

I can understand why conservatives might be disgruntled about today's ruling, though I don't think they have as much to be upset about as they think they do. But if you're going to be mad that the federal government has the power to tax you, don't get mad at John Roberts--he didn't invent the power. The Founders did.

E-books are not the end of democracy

Ben and I use this week's Scripps Howard column to consider recent comments by novelist Jonathan Franzen. Do e-books signal the end of democracy? My take.

Last year, I read "The Federalist Papers" for the first time. The book is a collection of 200-year-old newspaper essays from Alexander Hamilton, John Jay and James Madison -- Founding Fathers all -- explaining and defending the Constitution of the United States. I read almost none of it on paper.

Instead, I read the venerable document on these devices: a netbook, an iPhone, my iPad, a desktop computer and a Kindle. I took notes and made highlights, and many of the ideas I discovered and engaged in that book, on those devices, later became the basis for points I make in this weekly column.

According to Franzen, though, my experience is impossible. According to Franzen, I should've opted to use those devices to play "Angry Birds" instead.

When new technologies come along, old technologies are replaced. It's true that sometimes we lose something of value as a result. I've been an avid reader since I learned how to read; I love bookstores and I love having shelves of books. It makes me sad to see stores like Borders go out of business because times have changed.

Here's another truth: The rise of e-books has opened up worlds of opportunity for writers whose work didn't fit the templates of old-school publishers. A friend of mine, Justin Blessinger, self-published a comic novella at Amazon, because print publishers don't have much use for novellas. More famously, writer Amanda Hocking got rich selling her fantasy novels as e-books -- and only then was signed to a major publisher. Similar stories abound: Publishing has become more egalitarian, and democratic, thanks to e-books.

The Founders didn't need books, exactly, to break away from Britain and create the Constitution -- they needed the ideas contained in those books. E-books are just a new way to create and pass down those ideas.

They're doing the job quite well

.
I tried to avoid utopian-type talk in my take; Ben gives in to his dystopian side, basically suggesting us e-book readers will rue our proclivities when the revolution comes and electricity is denied the masses. Less darkly, he also notes that cloud-based reading puts readers at the mercy of the cloud providers. A good objection. Not, at this point, a fatal one for me.

A quick note about e-reading "The Federalist Papers"

I didn't plan to take a year-and-a-half to read "The Federalist Papers," but I got distracted along the way. But I finished them tonight on my brand-new Kindle. In fact, I read the entirety of them using the Kindle app on a variety of machines. For the record, these are the devices upon which I read the book:

• An HP netbook.
• An iMac desktop computer.
• My iPhone.
• An iPad 1.
• An iPad 2.
• The Kindle.

Remember when we used to pick up a book and just read the book? I love today's flexibility, though, and I use it.

Books I read in 2011

This was a really terrible book-reading year for me. Three surgeries clouded my head enough to make sustained concentration difficult: I started a lot of books, but finished precious few. The only novels I finished were, frankly, pulpy stuff. I hope to get my game back in 2012.

Here are some of the books I read to completion this year:

"Bossypants" by Tina Fey.

"The Conscience of a Liberal" by Paul Krugman.

"Winner-Take-All Politics" by Paul Pierson and Jacob S. Hacker.

"Cooking Solves Everything" by Mark Bittman (Kindle Single).

"The Gated City" by Ryan Avent (Kindle Sngle).

"The Great Stagnation" by Tyler Cowen (Kindle Single).

"Kitchen Confidential" by Anthony Bourdain.

"Star Trek: The Lost Years" by J.M. Dillard.

"Power Wars" by Charlie Savage (Kindle Single).

"The Pleasures of Reading in an Age of Distraction" by Alan Jacobs.

"Empire of Illusion" by Chris Hedges.

"The Score" by Richard Stark.

UPDATE: "The Beautiful Struggle: A Father, Two Sons, and an Unlikely Road to Manhood" by Ta-Nehisi Coates. Surprised I forgot this one, since it unsettled me so.

It's cheating, really, to count the Kindle Singles. Like I said: It was a horrible reading year for me. I have an excuse, but it still feels like I wasted time. Grrr. 2012, excelsior!

UPDATE II: A week later, I've added Kurt Vonnegut's "Mother Night," Justin Blessinger's "The Favorite," and Founding Fathers' "The Federalist Papers" to my list of completed books for 2011. That makes the list a bit less lame.

Federalist 58: Filibusters suck

It's true that when America adopted its Constitution, the Founders who wrote the Federalist Papers didn't put much—any—effort into defending the filibuster tactic that is so widely used in today's Senate. Why? Well, the Constitution itself didn't mention the filibuster: That's something the Senate decided, on its own, to allow in the rules.

Still, while reading Federalist 58, it's pretty easy to see what the Founders would've thought about the filibuster: They wouldn't have liked it. We can surmise as much when James Madison grapples with whether the Constitution should've required much more than a quorum for the House of Representatives to vote on weighty matters. Madison didn't like the burden that would create. Why? It would enable a minority of Congressmen to block legislation simply by not showing up:

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.

Some of my conservative friends defend the filibuster as a minority legislative defense against the tyranny of the majority. But it's pretty clear the Founders—or at least Madison—weren't interested in giving the minority the power to block legislation, seeing it as a reversal of "the fundamental principle of free government."

Combine this with Federalist 22, in which Alexander Hamilton railed against the idea that two-thirds of Americans would "submit their interests to the management and disposal of one third"—roughly the ratio needed for the Senate to sustain a filibuster—and it's sure seems clear the practice is both undemocratic and a betrayal of the Founders' vision.

A conservative friend says I may modify my position on this when I read further into the Federalists. Right now, though, the filibuster isn't really faring well.

Federalist 45: James Madison was wrong about (almost) everything

Returning to Federalist blogging after a too-long hiatus....

By now, I've made the point a few times that today's Tea Partiers have more in common with the original Antifederalists than with the actual framers of the Constitution. The Antifederalists wanted governance to remain primarily with the states, and while the Federalists certainly wanted more centralized federal governance than the Antifederalists, they still paid strong lip service to the idea that states would retain substantial power. The problem, some two centuries later, is that they were pretty much wrong about how that would play out—and nowhere is this more clear than in James Madison's Federalist 45.

Let's set the stage, though, by glancing at Antifederalist 45, written by "Sydney." He writes:

It appears that the general government, when completely organized, will absorb all those powers of the state which the framers of its constitution had declared should be only exercised by the representatives of the people of the state; that the burdens and expense of supporting a state establishment will be perpetuated; but its operations to ensure or contribute to any essential measures promotive of the happiness of the people may be totally prostrated, the general government arrogating to itself the right of interfering in the most minute objects of internal police, and the most trifling domestic concerns of every state, by possessing a power of passing laws "to provide for the general welfare of the United States," which may affect life, liberty and property in every modification they may think expedient, unchecked by cautionary reservations, and unrestrained by a declaration of any of those rights which the wisdom and prudence of America in the year 1776 held ought to be at all events protected from violation.

Viewed from a 2011 vantage point, this seems rather hyperbolic—Sydney asserts that the diminuition of state power will "destroy the rights and liberties of the people" and that seems incorrect. But it's surely the case that as the federal government has grown larger and more centralized that state governments have nonetheless also grown bigger and more expensive—and, in a lot of cases, funded by the federal taxpayer instead of just local folks.

Federalist 45 is part of Madison's attempt to defend against this charge, and there are two things to note here. A) He resorts to shameless demagoguery. And B) in making the arguments about why states would retain substantial power, he was wrong about just about everything.

The evidence for A) comes when Madison offers his first argument. So you say the states are going to lose their power, huh? Why do you hate the troops?

If that sounds like exaggeration on my part, here's what Madison actually wrote:

Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?

If Sean Hannity claims the mantle of the Founders today, this is why it can sound plausible: Madison certainly sounds like a blowhard here. He opens not with a defense of the Constitution, but an attack on the motives of the Antifederalists—some of whom surely must've had some vested interests in the primacy of state governments, but some of whom opposed the Constitution based on their love of "peace, liberty, and safety."

But ugly political attacks always have been and always will be with us. For our purposes, it's more notable that Madison was really, really wrong in his central defense against the Antifederalists. Sure, he said, the Constitution empowers the federal government more than the Articles of Confederation—that's why we made it! But even under the Constitution, he says, "the State government will have the advantage of the Federal government."

It's easy to look at the landscape today and conclude Madison was wrong. That's the simple part. More complex is why Madison ended up being wrong.

Federalist 41-44: The limits of enumerated powers vs. the limits of the written word

Uh-oh.
 
Through the first 40 chapters or so of “The Federalist Papers,” it’s been pretty easy to read the words of Hamilton, Madison and Jay with a liberal’s eyes. In the battle between those who want an energetic government capable of acting for the common good and those who want a national government shackled into near-inefficacy, these guys seemed pretty clearly to be on the former side. The Constitution was a strengthening and centralizing of the powers of national government, after all; to the extent we’ve talked about limits so far, it’s usually been an eye-rolling bone thrown in the direction of the Antifederalists. The limits were (nearly) incidental. The power was the thing.

Until now.

It’s not so much that Federalists 41-43 are about the limits of the government’s power as they are a fairly sharp delineation of what the government can actually do. And, well, it’s not much.

James Madison opens 41 with a clear eye on the Antifederalists, and he frames the question of the next few chapters fairly succinctly: “Is the aggregate power of the general government greater than ought to have been vested in it?”

To answer that question, he considers what the general government is supposed to do, and his answer -- it least initially -- is also pretty succinct:

That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers.

Item No. 4 caught my eye -- “miscellaneous” can cover a lot of territory -- but it turned out that’s Madison’s way of providing an overview of some of Congress’ more, er, miscellaenous powers: of copyright, over treason, that kind of thing.  There’s no Social Security. No Medicare. No national parks. Not much, in fact, of the stuff that I’m really glad that modern government does. Madison doesn’t say the federal government can’t or shouldn’t do these things. He just kind of sets the parameters.

What am I to make of this? What is anybody who is looking for a firmly grounded Constitutional liberalism to make of this? Do we have to choose between the Constitution and Social Security? Because, in all honesty, one is tempted to look at those two choices and say “The hell with the Constitution.”

But wait. Maybe there’s a sliver of hope here. And it comes in Federalist 44, when Madison attempts to defend Article I, Section 8 of the Constitution—to this day, perhaps, the section that arouses the most controversy in fights between activist government liberals and limited government conservatives.  The clause in question gives Congress the power

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This was already a controversial clause in the 18th century. Antifederalists apparently saw in it the possibility that Congress would overstep its bounds. And by their lights, it probably has been used that way.

Madison answers the charge that the clause is too vague by saying, in essence, that getting more specific -- either by listing more limits to Congress’ power or by providing a specific list of powers Congress could claim to execute the laws of the land -- would inevitably become problematic in the not-too-distant future.

But he runs out of steam, and finally reminds his readers that, ultimately, questions of what to do if the government exceeds its Constitutional power ultimately reside with the people of the United States.

In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives.

In other words, the final arbiter of the Constitution’s meaning isn’t the president or the Supreme Court or Congress -- it’s us.

Madison frames this in negative terms: We voters will set the limits for Congress, and if Congress exceeds those limits, we’ll punish Congress by electing new representatives. But it seems to me it’s possible to frame it in positive terms, as well: If We The People want government to provide Social Security and we’re not willing to punish representatives who give it to us -- in fact, we’ll punish those who threaten to take it away -- well, who is to say we’re wrong?

This is very seductive. And maybe not so different, practically, from the way we run things now. Our politics these last few years haven’t just been about how much we want government to spend or not spend, but about what’s Constitutional or not. That’s involved a lot of push-and-pull, and it’s been very frustrating at times, but one could make the case that citizens really do push back when they feel the government has overstepped its powers. Isn’t that what the Tea Party has been about? Sure, this ends up being messy and frustrating -- but it really does make the Constitution a living document, in the best sense: a constantly renewed guide that is the product of an ongoing conversation between the governed and the government, instead of 10 Commandments handed down from slave-owning demigods who lived hundreds of years ago. (Ones who, incidentally, didn’t always adhere to strict readings of the rules they were given.) I don’t always get the outcome I want, but I feel better if our government is a product of both wise  tradition and modern norms and democratic guidance from the citizenry.

There’s also a danger here, and it gives me pause. Because while I do want the government to provide a social safety need to the poorest and most vulnerable among us, I don’t want it (say) to make torturing people legal through a reading of the Constitution that allows a president to disregard laws and treaties that are the law of the land. I want there to be limits, and those limits are hard to maintain once you start treating the written Constitution as the beginning of the conversation instead of the end. Most Americans, it seems, were fine with a president whose reading of the Constitution let him break laws in wartime. I don’t agree with that. It gets harder to make the case against him if the Constitution is a somewhat fuzzy thing.

On the other other hand: It would appear that the rules for interpreting the Constitution are already fuzzy enough that our previous president got away with his interpretation. And if that’s the case, why the heck shouldn’t I get my safety net in the bargain?

In truth, with the exception of Ron Paul and other hardline libertarians, the rest of us spend so much of our time arguing about what the Constitution allows and what it doesn’t because we have implicilty agreed to let there be a certain fuzziness to the whole project. This isn’t very satisfying, and there’s a real possibility that we end up with the Constitution being whatever I say it is today. But it isn’t. It’s what we say it is today. And that’s the way it probably always has been.

There's a whisper in my ear, though. It's telling me I'm a hack, interpreting the Constitution the way I want against the evidence of my reading. But I'm only halfway through the Federalist Papers. I need to press on before making any final conclusions.

Recalibrating this blog

In a few hours, Scripps Howard should release the latest column from Ben Boychuk and yours truly. We talked about the Tucson shooting, of course: It's the only thing to talk about this week. And I hope my editors at Scripps will forgive me for teasing the column with this teaser summing up my take:

Nobody pauses. Nobody reflects. The only way to start trusting each other again would be to shut up and listen to each other once in awhile.  But what are the chances that’s going to happen? Non-existent, it seems. I’m right, you’re wrong, and that’s all anybody needs to know.

I'm not really happy with my contribution to this week's column. I'm not sure there's 300 words on the topic I could've written about Tucson that would've made me happy. I didn't want to re-hash the case that every liberal has made about militant rhetoric on the right; I didn't want to do one of those false equivalency things, either, where I suggest the problem stems from both sides; and yet I don't want to let my side of the argument off the hook and suggest that liberals offer a high-minded approach to public discourse that conservatives don't -- because, well, I don't believe it. 

But I do believe that paragraph above. I'm not sure if there's actually a way anymore to do vigorous, lively politics -- and politics is how we do democracy --  without retreating into base tribalism. I'm as guilty of that as anybody, from time to time. And I guess I'd like to recalibrate my own contribution to the conversation a bit, to make it less knee-jerky and more thoughtful: To stand for some ideas instead of tearing down what other people offer. 

So I'm going to attempt to retreat from the way I've done blogging lately, and try a different approach. Instead of scattershot snarking, I want to do a few things in this space:

* Curate the most interesting commentary I read, from a variety of sources.

* Interact with longer-form journalism and books.

* Expand the the topics here beyond politics to include some of my other favorite things: Literature, movies, TV, city life, and parenting. A whole life should not be confined to one's ballot-box preferences.

These are all things I've done before. But I'm going to be a little more intentional about them. I suspect it won't do wonders for my blog traffic, but that's ok: This space is a hobby, not a job, so I don't need to worry about that. 

In practice, this means I'm going to stop reading the morning papers on a laptop with the mouse button hovering over the browser's Posterous "blog-now!" button. I'll retreat to my iPad, which allows for sharing quickly, but not blogging efficiently. I'm going to consume information without expecting to produce new information immediately in response.

The end result is that you can expect me to revive my series of blog posts about the Federalist Papers. After last week's argument about the Constitution in the House, I'm more convinced than ever that liberals can -- and should -- make a case for constitutional liberalism that's rooted in (but not at all confined to) the Founders' vision. 

And as I've previously said, 2011 is my year of reading about income inequality and the welfare state. I'm almost complete with my first book in the series, Paul Krugman's somewhat-dated "The Conscience of a Liberal." You can expect my thoughts on that in a few days.

This is what I'm going to attempt. This will still be a liberal place. I don't pretend that I have more than a microscopic influence on the national conversation, but I'd like it to be productive. And for me, that probably means going slower and deeper.

The Tea Party, the states and the Constitution

That's what Ben and I talk abut in this week's Scripps column. Stop me if you've heard this before:

The proposed amendment spits in the eye of the same Founders whom conservatives make such a show of revering.

Before the Constitution, the United States was governed -- if you can call it that -- by the Articles of Confederation. Under that system, Congress functioned more like today's United Nations Security Council, a fractious and paralyzed body that let each state act as a sort of sovereign nation with veto power over every act of the national government.

It didn't work. Letting the states have that much power made it impossible to get anything done. The adoption of the Constitution didn't just fix those shortcomings: Read The Federalist Papers and it's clear the Founders believed the new system represented a decisive point when the multiple states decided they truly were a nation rather than a collection of small, weak, independent kingdoms.

There was opposition to that vision. A group of men who called themselves the "Anti-Federalists" wanted to continue the old ways of state primacy and campaigned hard against the Constitution. They lost the argument, or so it seemed. The emergence of the proposed new amendment suggests that -- for all their tri-corner hats and Gadsden flags -- today's Tea Party set has more in common with the Anti-Federalists who tried to stop the Constitution from becoming law than they do with the actual Founders. It's funny, if you think about it.

As a practical matter, giving states more federal power would also blur the lines between the two forms of government, making a real hash of things. Voting for state senators and governors and attorneys general might be determined by their stands on national -- rather than local -- issues. The proposed amendment doesn't just repudiate the work of the Founders; it's probably just a bad idea on its own merits.

Slate: Are Conservatives Trying To Destroy The Constitution?

Apparently unlike Dahlia Lithwick and Jeff Shesol, I don't think there's a big "aha!" moment in the idea that some conservatives who supposedly revere the Constitution also want to amend it. After all, the Constitution itself does provide for being amended. There are some constitutional fetishists, I suppose, who think the document was divinely inspired and thus must never be touched. Most conservatives I know think, roughly, that the class of men who created the Constitution have never been equaled -- and that the document should be touched rarely. Unfortunately, the rhetoric of our debates obscures even this small level of nuance.

That said, I agree with Lithwick and Shesol that this bit of information probably runs counter to the Founders' intentions:

It started quietly enough: In April 2009, constitutional scholar Randy Barnett published an op-ed in the Wall Street Journal offering proposals by which the Tea Party might amend the Constitution to "resist the growth of federal power." The most radical among them was an amendment permitting two-thirds of the states to band together and overturn any federal law they collectively dislike.

This week, completing the proposal's rapid march from the margins to the mainstream, Rep. Rob Bishop of Utah introduced the amendment in the U.S. House of Representatives, pledging to put "an arrow in the quiver of states." The soon-to-be House Majority Leader, Eric Cantor, said this week that "the Repeal Amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach, and get the government working for the people again, not the other way around." Fawning editorials in the Wall Street Journal and chest-heaving Fox News interviews quickly followed.

What these conservatives want, it seems to me, is to return American governance to something much closer to pre-Constitution days, around the era of the Articles of Confederation. Under those articles, the United States was something less than a fully functioning nation and more like the United Nations security council, a collection of sovereign governments who could put the kibosh on anything one of them didn't like.

It didn't work. And the adoption of the Constitution may have represented a point when the multiple states decided they truly were a nation, that they had to cede some sovereignty to each other, rather than each being a kingdom unto itself. (Certainly, in reading The Federalist Papers, it's clear that the creators of the Constitution saw that as the choice.) It was the Antifederalists who wanted to continue the old ways of state primacy; and the emergence of this proposed amendment confirms my opinion that today's Tea Party set has more in common with the people who tried to stop the Constitution from becoming law than they do with the men who actually founded the country as we know it.

(It also confirms my continuing believe in the Tea Party as an expression of sore loserdom. We didn't see much talk about amending the Constitution to give states more authority when the GOP controlled the White House and Congress, did we? There may be some principled beliefs at work here, but it seems to me that the amendment is also the result of efforts by the Republican Party to claim power however it can.)

If giving states a stronger voice at the federal level is the main goal, I think it might be better if another suggestion were adopted: To return to the practice of having U.S. senators appointed by their state legislators instead of being popularly elected by the citizenry of the states where they serve. I'm not certain how much that would change the dynamics of Capitol Hill -- except, maybe, to make U.S. senators more appointed to the political elites of their states instead of the citizenry at large. Certainly, there are plenty of examples of bad-idea programs continuing because a powerful senator comes from a coal state or a farm state or whatever, so it's not like these guys aren't thinking of their states when they're in Washington. I don't think it's a great idea, in other words. But it seems to me returning to the way it was originally done does less violence to the overall construction and intent of the Constitution than outright giving the states veto power. And hey, do we really need to popularly elected houses of legislative government? What's the point of that?

Giving the states veto power runs contrary to the Founders' vision; from that standpoint the proposal really does belie the idea of conservatives as somehow more faithful to that vision. And I suspect that clearing the way for smaller federal government, what it will do is add an entirely new layer of bureaucracy and politics to our public life. Instead of voting for congressmen to represent our interests in Washington and governors to take care of stuff at home, we'll start having to include national politics in our calculations of whom to vote for for state senator. Giving the states more federal power, in other words, might blur the lines between the two forms of government and make a real hash of things. So it's not just an anti-Constitutional proposal; it's probably also a bad one.

Federalist 40: A Strict Reading of the Rules

In the tradition of James Madison?

The men who created the Constitution didn't gather at Philadelphia with the purpose of creating a constitution, actually. They were there to try to fix the old constitution, the Articles of Confederation, that bound the United States together loosely but imperfectly. This was their commission:

"Resolved -- That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union."

But the men who gathered at Philadelphia didn't actually do the specific job they were given. Rather than fiddle around trying to fix the (apparently) unfixable Articles of Confederation, they more or less ripped up the document and started over with a blank piece of paper. And it's important to consider that act, very carefully, because what it means is this:

The Constitution was created because the Founders decided not to be "strict constructionists" about the rules they were given. Instead, they decided to act in the spirit of their commission, for the good of their country. The Constitution -- and the country -- we have is the result of their expansive reading of a plainspoken document.

Seems to me that this fact should have some bearing on how we decide to read the rules the Founders gave to us. Do we rely on a strict or originalist reading of the Constitution and bind ourselves very tightly to the vision of men who died more than two centuries ago? Or do we act in what we perceive to be the spirit of that document, allowing the government some leeway in acting for the collective good? And if we do that, where can we say the line is drawn, where the government has gone beyond the bounds a free people should allow it? Tough questions, often treated simply. But the experience of the Founders suggests, really, that there isn't a simple answer.

Federalist 39: James Madison's Confusing Sales Job

Read all entries in my series on The Federalist Papers here.

Well. No wonder we're so confused.

My writing partner Ben Boychuk and I had the pleasure of interviewing author Ron Chernow this week. He wrote the acclaimed new biography of George Washington, along with an earlier bio of Alexander Hamilton -- he knows something, in other words, about the founding of this country. In our discussion, Chernow repeated his assertion (first made in a New York Times op-ed) that today's Tea Partiers are wrong to claim an exclusive ideological heritage descended from the Founders. In truth, Chernow said, the Constitution was a compromise between competing visions of government -- powerful or limited? Instead of actually settling the question, the Founders fudged it a bit, so that the arguments of the 21st century aren't so different from the 18th.

Nowhere is that tension more evident, perhaps, than in James Madison's authorship of Federalist 39. Madison's intent here is to fend off criticism of the proposed new government as insufficiently federal -- that is, he's arguing against the proposition that the Constitution takes away too much power away from the states and deposits it in the national government.

Wait: That's kind of what the Constitution was created to do. The Articles of Confederation, which gave pride of power to the states, had already proved unworkable as a means of national government. But yesterday's antifederalists, like today's Tea Partiers, wanted to see more power left to the states -- and they were ruthless in suggesting that advocates of the Constitution were lying in their efforts to convince Americans that states still retained considerable power. Here's "A Farmer" writing in Antifederalist No. 3:

There are but two modes by which men are connected in society, the one which operates on individuals, this always has been, and ought still to be called, national government; the other which binds States and governments together (not corporations, for there is no considerable nation on earth, despotic, monarchical, or republican, that does not contain many subordinate corporations with various constitutions) this last has heretofore been denominated a league or confederacy. The term federalists is therefore improperly applied to themselves, by the friends and supporters of the proposed constitution. This abuse of language does not help the cause; every degree of imposition serves only to irritate, but can never convince. They are national men, and their opponents, or at least a great majority of them, are federal, in the only true and strict sense of the word.

Madison has tricky political ground to cover here, then, and he treads cautiously and confusingly. Let's jump to the final paragraph of 39 for a picture of the ambiguity.

The proposed Constitution, therefore is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

Got that?

Now it's true that something can be partly one thing and partly another. But this paragraph -- and the whole paper -- makes me wonder if the effort to sell the Constitution as a document of "limited" government is more a political sales job than a substantive description.

The new government, after all, will have unlimited power of taxation. It will be the arbiter of disputes between the states. It alone has the power to raise a standing army. The one power the states seem to retain over the national government at this stage is whether or not to opt-in to the system. After that, they can shape it somewhat -- through electoral votes and appointments to the Senate -- but there are no real veto points once the national government has made up its mind about a course of action. The states can give legitimacy to the national government; there's no real mechanism for them to withdraw it.

That's not to say the national government has unlimited power overall. It has its spheres of influence, and the states have theirs.

In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.

But the national government's spheres of action are biggies. That's why the antifederalists fought the Constitution.

I'm not arguing for all this as a brief for unlimited central government, incidentally. I'm rather haphazardly trying to make sense of this as a pitch at the time, and looking at it in light of what actually happened in America's history. And what I'm seeing here is this: James Madison, whether he wanted to or not, left the door open to a bigger government than what today's Tea Partiers want -- or perhaps he himself envisioned.

How wide? I suspect we'll find that out in the coming papers.

Federalist 37-38: Making Government Is Hard! (A Two-Part Blog That Includes Supreme Court Musings)

James Madison is sure a whiny sonofabitch.

Sorry. That's crass and vulgar, not at all in keeping with the high-minded aspirations of this project of reading all the way through The Federalist Papers, which is the Founding Fathers' gift to us, the best explanation we have on hand of why they did what they did in crafting the Constitution of the United States.

But in Federalist 37 and 38, we're reminded that the Founders weren't actually demigods who met at a modern Mount Olympus and received the text as a gift from some even higher power. (Not that Madison and others weren't interested in promoting that storyline: "It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.") They were politicians, really, and very human. And like all humans who have worked really hard on a project, they got irritated at the challenges put forth to the work they'd done.

Federalist 30-36: This Government Was Made For Taxin'. And That's Just What It'll Do.

The farther I read into the Federalist Papers, the more I'm convinced the Tea Partiers only know about half their history.

Back up: I didn't start reading the Federalists with the aim of debunking the Tea Partiers. But it's impossible to read historical documents about the nature of governance in America when there's a coalition of folks out there who so strongly identify with those historical personages.

Their narrative, I believe, goes something like this: America was born, essentially, in a tax rebellion. And the Founding Fathers then created a limited government in order to avoid oppressing the people either with burdensome taxes or directly tyrannical rule. And maybe, just maybe, if the tax burden gets too large -- well, maybe, Americans have the right to resort to rebellion again.

Like I said: I think that's only partly right. Because the Federalist Papers -- the documents we most use, aside from the Constitution itself, for insight into the Founders' thinking -- seem to favor a rather more expansive vision of government than the Tea Party narrative would suggest.

I already mentioned this theory back in Federalist 15. But it's' greatly reinforced by reading Alexander Hamilton in Federalist 30 through 36.

Why? Because those chapters are about the topic nearest and dearest to the hearts of Tea Partiers: Taxation.

And get this: Hamilton was arguing that the power to tax was a central reason -- maybe the central reason -- the Constitution needed to be passed. And not just any power to tax: Unlimited power to tax.

This kind of goes against the narrative we hear lately, but there it is in Hamilton's own words: Without unlimited power to tax, the government will be a weak and ineffective thing.

How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good?

Now, Hamilton was speaking from some experience here: A reason the Articles of Confederation were considered to have failed was that the Congress under the articles couldn't raise its own money -- it had to ask the states, essentially. And the states weren't always forthcoming. That left the United States unable to expeditiously pay its debts from the Revolutionary War.

Here's where honesty compels me to note, though, that Hamilton's call for unlimited power of taxation -- and I'm serious here: he wanted it to be unlimited -- didn't seem to be in the service of creating a welfare state, but rather to pay for the common defense. (Federalist 34: "The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense.")

But unlimited power is, of course, unlimited power. And that's what Hamilton was arguing for. Here he is in Federalist 31:

As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community.

As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.

As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.

This, of course, was horrifying to the antifederalists. And -- not to drive the point home with too much earnestness -- it was horrifying to them in a way that today's Tea Partiers would find very familiar. Here's "Brutus" writing in Antifederalist 32:

We may say then that this clause commits to the hands of the general legislature every conceivable source of revenue within the United States, Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy. It opens a door to the appointment of a swarm of revenue and excise collectors to prey upon the honest and industrious part of the community, [and] eat up their substance. . . .

If you're a Tea Partier, that sounds like a fairly accurate description of what happened, I suppose.

But the antifederalists were wrong, to some extent. They were concerned, it seems, with preserving a fair measure of state sovereignty -- "state's rights" you might say -- and their biggest worry about the Constitution's grant of unlimited power to tax was that it would, over time, deprive the states of their power to tax. It hasn't really worked out that way.

In the end, Hamilton rejected every suggested limitation to restrict Congress' power to tax. The only real check, he suggested, was the voters themselves -- and their ability to send to Congress wise people who would understand how to balance the needs of government against the income of its citizens.

There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.

Two-hundred years later, the only question I can ask is: How's that working out for ya?

Federalist 23-29: Freedom, and the national security state

Find all my Federalist Papers blog posts here.

There's a conservative narrative of the last 100 years or so that goes something like this: America started to become a little less free -- a little less tethered to its Constitution -- about the time that Franklin D. Roosevelt took power during the Great Depression and started creating the welfare state. Every new entitlement -- "ObamaCare," say -- and every slight tax increase represents a near-tyrannical intrusion of the state into realms that should be private. Every time a Medicare check goes out, then, freedom dies a little more and somewhere in the great beyond, Friedrich Hayek sheds a tear. Or maybe Ayn Rand.

There's an alternative narrative -- one that doesn't get as much attention -- and in the last year it's been most famously advanced by onetime conservative author Garry Wills. In this reading of history, it was indeed Franklin D. Roosevelt who expanded the state at the expense of the individual -- but it wasn't Social Security that represented tyranny: It was the explosive growth of the national security state, which since World War II has granted the president ever greater -- and, seemingly, ever-more-uncheckable -- power, all in the name of protecting America from her enemies.

Which brings us back to 200 years ago, and the adoption of the Constitution. Its passage, it seems, was no sure thing, and the central issue in the debate between Federalists and Antifederalists, it seems, was freedom: What form of government would be effective, yet still allow men -- and it was men who had the freedom -- the latitude to live their lives as they pleased?

There's not much in either the Federalist or the Antifederalist papers to suggest that the welfare state was a concern in the debate over freedom. To be fair, partisans on both sides probably hadn't conceived of it. Instead, they clashed over a controversial power of the new goverment: The power to raise a standing army.

"Brutus" writing in Antifederalist 24, made the case plain:

. . . . Standing armies are dangerous to the liberties of a people. . . . [If] necessary, the truth of the position might be confirmed by the history of almost every nation in the world. A cloud of the most illustrious patriots of every age and country, where freedom has been enjoyed, might be adduced as witnesses in support of the sentiment. But I presume it would be useless, to enter into a labored argument, to prove to the people of America, a position which has so long and so generally been received by them as a kind of axiom.

This, it seems, was an argument the Federalists took seriously. Alexander Hamilton spent all of Federalist 23 through 29 defending the government's prerogative to raise a standing army. And he made some decent arguments -- pointing out, not unreasonably, that most state governments at the time were empowered to raise armies, and that furthermore the "Western frontier" of the United States, still confined to those early 13 coast-hugging colonies, was in need of defense. If an invasion came,it would already be too late to form an army to repel the attack. And in Federalist 25, he even makes the odd argument that it's safe to let the federal government raise a standing army precisely because Americans would be suspicious of infringement on their liberties:

As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.

Hamilton's strongest argument against a standing army being used to usurp American liberties, though, comes from the structure of the government itself. The chief executive might be willing to use the army for nefarious purposes, he says, but then he'd have to contend with Congress!

Federalist 24:

the whole power of raising armies was lodged in the legislature, not in the executive; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.

From this, we can gather a few things:

* That Hamilton didn't really forsee that the executive branch -- despite the division of powers enumerated in the Constitution -- would claim for itself practically unlimited and unilateral power over national security.

* Nor did he forsee that Congress would generally defer to the executive's assertion of authority.

* Then again, none of the folks involved really foresaw the explosive growth of a national security state that involves hundreds of thousands of people collecting snooping and spying on, well, pretty much all electronic communication on Planet Earth. Concerns about a "standing army" seem almost quaint, don't they.

One wonders what Brutus or Alexander Hamilton would've made of today's lead story in the Washington Post, and these findings:

* Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.

* An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.

* In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings - about 17 million square feet of space.

There are reasons for all of this, of course. We want to be kept safe from the threats the world aims at us. The result is that we have a huge -- and, because it is so huge, virtually unchecked -- national security establishment that operates in the shadows, out of the public's sight. Alexander Hamilton promised us that Congress would keep the leviathan in check. It hasn't. Do you feel any more free?

Federalist 16-20: Alexander Hamilton's hopey-changey thing

Here we are, once again: The shadow of the Civil War -- about 70 years in the future -- keeps popping up as we make our way through the Federalist Papers. Why? Because Alexander Hamilton, John Jay and James Madison keep making the case that the United States under the Articles of Confederation is prone to such a war.

Hamilton revisits this theme in Federalist 16, suggesting that the states under the Articles have so much latitude to act on their own -- instead of falling in line under a central government -- that conflict is more likely to arise between the states. "The first war of this kind," he warns, "would probably terminate in a dissolution of the Union."

There's another possibility, though, as Hamilton admits: If one state went its own way in defiance of the national government, the other states would probably do likewise -- rather than make a big deal and incite war. "And the guilt of all," Hamilton writes, " would become the security of all."

And I admit: I'm having a hard time finding a major flaw in that arrangement. It appears there are two possible ways of insuring against a civil war: building a central government with the power to keep the states in line, or giving the states the freedom to act on their own and not impose laws and rules on each other.

Indeed, the antifederalists argue that building and empowering a centralized government will make a civil war more likely -- and more devastating when it occurs. "A Farmer" is one of those who made the argument.

Whether national government will be productive of internal peace, is too uncertain to admit of decided opinion. I only hazard a conjecture when I say, that our state disputes, in a confederacy, would be disputes of levity and passion, which would subside before injury. The people being free, government having no right to them, but they to government, they would separate and divide as interest or inclination prompted-as they do at this day, and always have done, in Switzerland. In a national government, unless cautiously and fortunately administered, the disputes will be the deep-rooted differences of interest, where part of the empire must be injured by the operation of general law; and then should the sword of government be once drawn (which Heaven avert) I fear it will not be sheathed, until we have waded through that series of desolation, which France, Spain, and the other great kingdoms of the world have suffered, in order to bring so many separate States into uniformity, of government and law; in which event the legislative power can only be entrusted to one man (as it is with them) who can have no local attachments, partial interests, or private views to gratify.

That kind of sounds like what happened, doesn't it? But Hamilton argues for big gubmint. Get this:

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 aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States.

There's a lot of talk here about pretty mushy concepts like "hopes" and fears" and "the human heart." It sounds, in fact, almost Obama-like. Hamilton isn't really talking about limited government staying out of the way of citizens, who are then free to make their own way by dint of their rugged individualism. He's talking about using the power of the state in the service of citizen self-actualization. When Democrats talk like this these days, my conservative friends react with horror and contempt. Am I missing something?

Don't worry, Hamilton says in Federalist 15. The federal government under the U.S. Constitution will be too limited to really infringe on the people, or even to displace state governments. And it's here that I confess: My conservative friends are probably right when they say Hamilton et al could never have imagined the huge federal government we have today. Here's Hamilton talking about those limitations:

I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.

Mr. Hamilton: I give you the Department of Agriculture -- which has done more to affect why, how and what we grow and eat than any other institution in human history, perhaps. So there's that.
He keeps going.

There is one transcendant advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light, -- I mean the ordinary administration of criminal and civil justice. ... This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union.

Mr. Hamilton, I give you the FBI. Bank robberies, no matter how third-rate and niggling, aren't really a local matter anymore -- they're prosecuted in federal courts. Just last month, the Supreme Court ruled that federal officials could civilly commit sex offenders who've served out their criminal prison sentences -- a role that used to be exclusively reserved to the states. And that ruling came from a conservative Supreme Court -- based on the so-called "necessary and proper clause" of the Constitution that gives Congress the power to make any law it needs to carry out its duties.

And hoo boy: The Antifederalists saw that one coming. Here's "Brutus," writing in Antifederalist 17.

The legislature of the United States are vested with the great and uncontrollable powers of laying and collecting taxes, duties, imposts, and excises; of regulating trade, raising and supporting armies, organizing, arming, and disciplining the militia, instituting courts, and other general powers; and are by this clause invested with the power of making all laws, proper and necessary, for carrying all these into execution; and they may so exercise this power as entirely to annihilate all the State governments, and reduce this country to one single government. And if they may do it, it is pretty certain they will; for it will be found that the power retained by individual States, small as it is, will be a clog upon the wheels of the government of the United States; the latter, therefore, will be naturally inclined to remove it out of the way.

Now it's not true that state governments have been "annihilated." But it is true that the trend has been that federal power has increased and state power has contracted. Which brings us to Hamilton's most flatly untrue statement -- though, perhaps, he couldn't have known it at the time.

It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities.

It didn't really work out that way, did it?

Now, I don't think that's entirely bad. But if I'm honest here, I've got to say, the Antifederalists were generally right and the Federalists were generally wrong: The government being built under the new Constitution did morph into something big and powerful and giant, reaching into many areas of the lives of its citizens. Maybe that growth is a distortion of the Founder's vision -- probably, to some extent, it is -- but Hamilton's pretty blase about the possibilities. "It can't happen here," is what he seems to be saying. But it did.

Federalists 18, 19 and 20 also concern themselves, ostensibly, with the insufficiency of the Articles of Confederation -- but rely mostly on a verrrry dry reading of history from throughout the ancient world. I'm not familiar enough with Greek or German or Dutch history to judge the interpretations offered by Hamilton and Madison here, so I won't try.

But now I'm faced with a question: Will reading the Federalist and Antifederalist papers turn me into a libertarian weirdo? It's a possibility!

Federalist 15: Do today's Tea Partiers know about this?

I had thought I'd be taking these Federalist chapters in big chunks, rather than one-by-one, but it turns out there's a lot to think about in all of these. So we're going to have to go slowly.

You might remember that I said -- somewhat near the outset of this project -- that I expected some of the context of the Federalist would reveal itself as we proceeded through the papers. I wasn't entirely wrong, because we're now at Federalist 15, and Publius is ready to start telling us why the Articles of Confederation stink.

Not, of course, that he needs to make the case. From what I can tell skimming through the Antifederalist Papers, there's no great love for the Articles among any huge segment of the nascent American society. And Publius -- Alexander Hamilton in this particular chapter -- acknowledges as much.

The point next in order to be examined is the "insufficiency of the present Confederation to the preservation of the Union." It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as the friends of the new Constitution.

So what's the problem here, exactly?

Well, as Hamilton puts it, the antifederalists know the Confederation doesn't work -- but they're unwilling to countenance a government strong enough to overcome the Confederation's problems.

While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members.

Hmmm. Let me say right here I'm not trying to score any political points. But I've increasingly suspected -- reading the Federalist Papers and skimming over the Antifederalist Papers -- that today's Tea Party/GOP/conservative crowd might be heir more to the antifederalist tradition rather than the federalists. I'm not ready to mount a definitive case here -- I've not done enough reading, and in any case I've already suggested that Alexander Hamilton may not be the most reliable narrator -- but this passage here adds to my sense of things. Because it sure sounds like Hamilton is describing the kind of schizophrenia that characterizes a movement that roots on a president who breaks wiretapping and torture laws while decrying slightly higher marginal tax rates as "tyranny."

But I might be overreading things. I'm not ready to make the case. So let's move on.

Because of the antifederalist bipolar approach, Hamilton says, he's going to have to show how the Confederation really doesn't work. And he starts off with the biggest problem: The national government has too little power, while the states have too much. That means the states can -- and do -- ignore the laws made by the national government. It's an untenable situation.

The United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulation extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members fo the Union, yet in practice they are mere recommendations which the States observe or disregard at their option.

Up till now, Publius has talked long and hard about the need for the United States to remain, well, united. Now he takes a different tack: It would be better for the states to exist as separate nations -- though allied, like the NATO alliance -- rather than allow the national government to continue in such an emasculated state. Otherwise, Hamilton writes, it's time to give a national government the power to enforce the laws it makes -- even over the objections of the states.

Government implies the power of making laws. It is essential to the idea of a law that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.

He continues:

There was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected; that a sense of common interest would perside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. ... In our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the complete execution of every important measure that proceeds from the Union. It has happened as was to have been forseen. The measures of the Union have not been executed; the delinquencies of the states have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand.

And here again, I'm thinking of today's Tea Party/conservative/GOP folks who regularly assert the rights of states to nullify federal laws. (Take a look at the states attorneys general bringing legal challenges to the Affordable Care Act.) They claim to be acting in the traditions of the Founders; yet the Founders really did act to centralize power -- take it away from the states -- instead of distributing power to the states.

I have no doubt I'll come up against a flaw in this theory -- or that somebody will point it out to me -- as I continue reading. But so far, I'm finding it harder to avoid this idea: Today's Tea Partiers might actually be heirs to folks who wanted nothing to do with the Constitution. There's nothing inherently wrong with that, assuming I'm right. But it might cast a very different flavor to our modern debates.

Federalist 14: Something old, something new

The entire live-blog of "The Federalist Papers" can be found here.

My friend Ben is fond of distinguishing American conservatism from its European forebears; American conservatives, he has told me on several occasions, are conserving a revolutionary heritage. I thought about his statement quite a bit while reading James Madison in Federalist 14.

This chapter is, ostensibly, about whether the United States is too big to be governed effectively. (Madison's answer: If we were a pure democracy, with every man given a direct voice in governing, sure. But since we're a republic -- with representatives sent from the 13 states to the heart of the union -- we'll do fine. And hey, we managed to pull off a revolution together!)

But as we near the end of 14, it's apparent that Madison has another topic on his mind: Whether the type of government embodied in the proposed Constitution is so new, so radical, so unfamiliar that its very novelty increases the risks of failure. Madison's answer, of course, is "no." The Constitution might look like a new animal, he suggests, but it's really a hybrid of the best parts of governments found elsewhere in the world, and throughout history. At the same time, though, Madison offers a defense of the spirit of experimentation:

Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?

(Snip)

Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe.

I noted at the outset that conservatives tend to cite "The Federalist Papers" more often than liberals and progressives, and I still think that's true. But it's here that I start to see signs that progressives can also claim a heritage from the Founding Fathers. Today's conservatives, I think, want to bind us to the vision of the Founders in a way that, perhaps, the Founders would've found alien. A reason I hear for that, often, is that human nature hasn't changed so much in 200 years. And that's right. But I don't imagine it had changed all that much, frankly, in the 200 years before the Constitution was written, either. The Founders, in other words, were not the last wise men to walk this earth.

Still, the Founders might've been experimenters and progressives, but they were rationalists and empiricists as well. They didn't build the Constitution out of a sense of pure novelty, but sought foundations in history and experience for what they were trying. And they expected, as Madison notes, that their successors would both "improve and perpetuate" what they built. If we are to conserve a revolutionary heritage, then, perhaps it was intended from the beginning that we preserve both the revolution and the heritage.

Federalist No. 6 - Federalist No. 10: Let's not fight with each other

I said last time that the shadow of the Civil War would loom heavily over my reading of "The Federalist Papers" -- and starting in Federalist No. 6, it really, really does. Because it's here that Alexander Hamilton starts to make the case that a strong union won't just protect the individual states from wars with external powers -- it'll also keep the states from making war on each other.

So, ummm ... how did that work out for you?

No. Wait. Snark is a little too easy here. Truth is, Hamilton's got history on his side -- but he's going to take his time getting to the most useful parts of it. Instead, he tells us in No. 6 that the problem with leaving the states to proceed forward as autonomous nations is that each small state will be more likely to see the rise of a leader who makes war on neighboring states for his own vainglorious reasons.

Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquility to personal advantage or personal gratification.

He goes on at length about this, citing examples from Pericles and Henry VIII, and well, he's right. That's absolutely a danger -- but it's not the ONLY danger, and sometimes it's not even the most important one. (And in any case, both large nations and small ones are subject to the danger.) The Civil War came about not because (say) Robert E. Lee dreamed of a thousand monuments to his name, but because there were very real moral (slavery) and philosophical (the role of the federal government) differences between the Northern and Southern states.

To be fair, Hamilton acknowledges as much in No. 7, listing out a series of reasons individual states might make violence upon each other: territorial disputes, including claims to territories in the west; "the competitions of commerce;" the settling of debts already owed by the Union (mostly leftover from the Revolutionary War); differing approaches to settling contracts; that kind of thing.* It's notable, though, that Hamilton speaks here in generalities -- because there's a specific notable omission: SLAVERY! WHAT ABOUT SLAVERY?!?!

*I don't want to spend too much time on a tangent here, but there's been a theory advanced among (for lack of a better word) neoconservatives in recent years that America preserves its security by establishing democracies in other countries because democracies don't tend to make war on each other. After reading Federalists No. 6 and 7, I think it's safe to say that Alexander Hamilton, drawing from history, might pooh-pooh that notion.

The result of all these potential sources of conflict, Hamilton says in No. 8, would be that each state and/or small confederacy would probably end up more militarized -- and thus more injurious to personal liberties -- than if they stuck together under the proposed Constitution. This is kind of a sly argument: One of the main concerns of the Antifederalists, I gather, is that the new Constitution would allow a central government to form a standing Army. Well, Hamilton says, the raising of a standing army can only be inferred from the words of the Constitution -- but it's a dead certainty if the states go their own way. They'll be so likely to come in conflict with each other -- and here Hamilton drops a number of examples from Europe -- that they'll have to raise their guard against each other.

In making this case, he says a few words about the militarization of a society that seem to be worth considering in 21st century America.

The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors.

This kind of society, of course, is what the new Constitution is meant to protect against. And that's the promise Hamilton makes.

But if we should be disunited, and the integral parts should either remain separated, or, which is most probably, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe -- our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other.

Or, as he says more succinctly at the outset of No. 9:

A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection.

It is in Federalist No. 10 that James Madison (finally!) makes an appearance and starts to explain why a union under the proposed Constitution will be able to tamp down -- though never eliminate -- factionalism between the states. Basically, the proposed form of government -- a republic -- will allow for democracy but not too much democracy; populist passions will be cooled by the filtration of a small group of elected men, who will thus be able to keep the passions of the day balanced against each other. Maybe one state could come under the sway of crazy men with crazy ideas, he says, but certainly not all of them at the same time. A republican form of government will "refine and enlarge the public views," he says,

by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

Which brings us back around to the Civil War. If the Constitution was supposed to tamp down conflicts between the states and temper their passions ... well, why didn't it?

Maybe it did. I've been reading the Federalists with the idea that the Civil War disproved some of the assertions made about the effects of unity, but maybe I'm wrong. Maybe the Civil War is just a huge, glaring, bloody exception to the rules that Madison, Hamilton and Jay are setting forth here. And it would be 70 years or so before the divisions between North and South turned bloody. We have stuck together -- despite some turbulent times -- since then. So who knows?

In any case, these first 10 Federalists have felt -- to this reader at least -- like so much throat-clearing. There's been a lot of talks about the benefits of unity and the dangers of splitting up into separate states or confederacies. There's been precious little talk about the proposed Constitution itself, as well as the deficiencies of the Articles of Confederation. We've got a few more chapters to go discussing the benefits of union, but just over the horizon we're about to get some answers to our main questions: Why do the Articles suck? And why is the Constitution so awesome?