Federal v. Consolidated Government
[Volume 1, Page 284]
CHAPTER 8|Document 35
The Fallacies of the Freeman Detected by a [Pennsylvania] Farmer23 Apr. 1788Storing 3.14.6--21
I shall proceed to define a FEDERAL REPUBLIC:--A Federal Republic is formed by two or more single or consolidated republics, uniting together by a perpetual confederacy, and without ceasing to be distinct states or sovereignties; they form together a federal republic or an empire of states. As individuals in a state of nature surrender a portion of their natural liberty to the society of which they become members, in order to receive in lieu thereof protection and conveniency; so in forming a federal republic the individual states surrender a part of their separate sovereignty to the general government or federal head, in order that, whilst they respectively enjoy internally the freedom and happiness peculiar to free republics, they may possess all that external protection, security, and weight by their confederated resources, that can possibly be obtained in the most extended, absolute monarchies.
The peculiar advantages and distinctive properties of a federal republic are, that each state or member of the confederation may be fully adequate for every local purpose, that it may subsist in a small territory, that the people may have a common interest, possess a competent knowledge of the resources and expenditures of their own particular government, that their immediate representatives in the state governments will know and be known by the citizens, will have a common interest with them, and must bear a part of all the burdens which they may lay upon the people, that they will be responsible to the people, and may be dismissed by them at pleasure; that therefore the government would be a government of confidence and possess sufficient energy without the aid of standing armies, that the collectors of the revenue would at least have the bowels of citizens, and not be the offscourings of Europe, or other states who have no interest in, or attachment to the people; that if one or more of the states should become the prey of internal despotism, or foreign foes, the other states may remain secure under the protection of their own state government; that if some popular and wealthy citizen should have influence enough to attempt the liberties of one state, he might be stopped in his career by the interposition of the others, for his influence could not be equally great in all the states; that if the general government should fail, or be revised or changed, yet the several state governments may remain entire to secure the happiness of the citizens; and that the members of a confederated republic may be encreased to any amount, and consequently its external strength without altering the nature of the government, or endangering the liberty of the citizens.[Volume 1, Page 285]
The perfection of a federal republic consists in drawing the proper line between those objects of sovereignty which are of a general nature, and which ought to be vested in the federal government, and those which are of a more local nature and ought to remain with the particular governments; any rule that can be laid down for this must vary according to the situation and circumstances of the confederating states; yet still this general rule will hold good, viz. that all that portion of sovereignty which involve the common interest of all the confederating states, and which cannot be exercised by the states in their individual capacity without endangering the liberty and welfare of the whole, ought to be vested in the general government, reserving such a proportion of sovereignty in the state governments as would enable them to exist alone, if the general government should fail either by violence or with the common consent of the confederates; the states should respectively have laws, courts, force, and revenues of their own sufficient for their own security; they ought to be fit to keep house alone if necessary; if this be not the case, or so far as it ceases to be so, it is a departure from a federal to a consolidated government; and this brings me to the next particular, which is to shew what is meant by a consolidated government.
Thirdly. The idea of a CONSOLIDATED GOVERNMENT is easily understood, where a single society or nation forms one entire separate government, and possess the whole sovereign power; this is a consolidated or national government. Whether a government be of a monarchical, aristocratical or democratical nature, it doth not alter the case, it is either a federal or a consolidated government, there being no medium as to kind.--The absoluteness of a despotic sovereignty is often restricted by corporate bodies, who are vested with peculiar privileges and franchises--and by a just distribution of the executive and ministerial powers; but although these may contribute to the happiness of the people, yet they do not change the nature of the government. Indeed, monarchies can never form a federal government; they may enter into alliances with each other; for monarchy cannot be divested of a competent proportion of sovereignty to form a general government without changing its nature. It is only free republics that can completely and safely form a federal republic; I say free republics, for there are republics who are not free, such as Venice, where a citizen carrying arms is punished with instant death, and where even the nobles dare not converse with strangers, and scarcely with their friends, and are liable by law to be put to death secretly without trial--or Poland which, in much the same words that are expressed in the new system, is by a league with the neighbouring powers guaranteed to be forever independent and of a republican form; yet a writer of their own says, that the body of the people are scarcely to be distinguished from brutes; and again he says, we have reduced the people of our kingdom by misery to a state of brutes; they drag out their days in stupidity, &c. Free republics are congenial to a federal republic. In order that a republic may preserve its liberty, it must not only have a good form of government, but it must be of small extent; for if it possess extensive territory, it would be ruined by internal imperfection. The authority of government in a large republic does not equally pervade all the parts; nor are the political advantages equally enjoyed by the citizens remote from the capital as by those in the vicinity; combinations consequently prevail among the members of the legislature, and this introduces corruption and is destructive of that confidence in government, without which a free republic cannot be supported; besides, the high influential trusts which must be vested in the great officers of state, would at particular times endanger the government, and are necessarily destructive of that equality among the citizens, which is the only permanent basis of a republic; in short, the diversity of the situation, habits, manners, and interests of the people in an extensive dominion, subjects the government to a thousand accidents, which would embarrass a republican government. The experience of nations and the nature of things, sufficiently prove, that the government of a single person, aided by armies and controuling influence, is necessary to govern a large consolidated empire.
And on the other hand, if the territory be small, the republic is liable to be destroyed by external force, therefore, reason and observation points out a confederation of republics, as the only method to preserve internal freedom, together with external strength and respectability.--Small republics forming a federal republic on these principles, may be resembled to divers small ropes plaited together to make a large and strong one, if the latter is untwisted, the small ropes are still useful as such, but if the former are untwisted, they are reduced to hemp, the original state.
To apply these principles to our present situation without respect to the proposed plan of government; in order to render the federal government adequate to the exigencies of the confederating states, it is necessary not only that the general government should be properly constructed in its forms, but that it should be vested with powers relative to all the federal objects of government, these objects are not only the powers of making peace and war, &c. but also with the power of making treaties respecting commerce, regulating and raising revenues therefrom, &c. to make requisitions of money when necessity requires it, from each of the states, and a certain well described power of compelling delinquent states to pay up their quota of such requisitions. Perhaps if each state had its own share of the domestic debt quotaed, so as they might each pay their own citizens, the general revenues would be sufficient for the other demands of the union in times of peace, if the government itself be not made too expensive by too great a number of officers being created. Congress ought, however, to have all powers which cannot be exercised by one state, without endangering the other states, such as the power of raising troops, treating with foreign nations, &c.--The power of levying imposts, will, by the particular states, be irregularly exercised, and the revenue in a great degree lost or misapplied, therefore, it ought not to be left with the states, but under proper checks, vested in the general government. All these the minority were amongst [Volume 1, Page 286] the foremost willing to have vested in the federal head, and more than this, had never been asked by Congress, nor proposed by the greatest advocates for congressional power, nor is more than this consistent with the nature of a federal republic. When the existing confederation was adopted, powers were given with a sparing hand, and perhaps, not improperly at that period, until experience should point out the discriminating line with sufficient experience, well knowing that it is easy for a government to obtain an encrease of power when common utility points out the propriety, but that powers once vested in a government, however dangerous they may prove, are rarely recovered without bloodshed, and even that awful method of regaining lost liberty is seldom effectual. It is now however evident that the power of regulating commerce, being of a general nature, ought to belong to the general government, and the burthen of debt incurred by the revolution hath rendered a general revenue necessary, for this purpose imposts upon articles of importation present themselves, not only as a productive source of revenue, but as a revenue for which the governments of the particular states are for well known reasons, incompetent.--The danger of entrusting a government so far out of the people's reach as Congress must necessarily be, strongly impressed the public mind about four or five years since, but now a conviction of the advantage and probable safety of such a measure, pervades almost every mind, and none are more willing for putting it in operation, under proper guards, than the opposers of the new system; they are also willing to admit what the majority of the states may judge proper checks in the form of the general government, as far as those checks, or the distribution of powers and responsibility of those who be vested with those powers, may be consistent with the security of the essential sovereignty of the respective states. The minority of the convention (who I really believe, in their address, express the serious sentiments of the majority of this state) opposed vesting such powers in Congress as can be most effectually exercised by the state governments in a full consistency with the general interests of the confederating states, and which, not being of a general nature, are not upon federal principles, objects of the federal government, I mean the power of capitation, or poll tax, by which the head, or in other words, the existence of every person is put in their power by the new system as a property, subject to any price or tax that may be judged proper; I do not mean to say that this implies the power of life and death, although it certainly implies the power of selling the property, or if none is to be had, of imprisoning or selling the person for a servant, who doth not chuse, or is not able to pay the poll tax; the minority also objected to vesting Congress with power to tax the property, real and personal of the citizens of the several states, to what amount, and in what manner it may please, without any check or controul upon its discretion; also to the unlimitted power over the excise; if this could extend only to spirituous liquors as is usual with us, the danger would be less, but the power of excise extends to every thing we eat, drink, or wear, and in Europe it is thus extensively put in practice. Under the term duties, every species of indirect taxes is included, but it especially means the power of levying money upon printed books, and written instruments.
The Congress, by the proposed system, have the power of borrowing money to what amount they may judge proper, consequently to mortgage all our estates, and all our sources of revenue. The exclusive power of emmitting bills of credit is also reserved to Congress. They have, moreover, the power of instituting courts of justice without tryal by jury, except in criminal cases, and under such regulations as Congress may think proper to decide, not only in such cases as arise out of all the foregoing powers, but in the other cases which are enumerated in the system.
The absolute sovereignty in all the foregoing instances, as well as several others not here enumerated, are vested in the general government, without being subject to any constitutional check or controul from the state governments.
It remains to examine the nature of the powers which are left with the states, and on this subject it is not necessary to follow Freeman through the numerous detail of particulars with which he confuses the reader. I shall examine only a few of the more considerable. The Freeman in his 2d Number, after mentioning in a very delusory manner divers powers which remain with the states, he says we shall find many other instances under the constitution which require or imply the existence or continuance of the sovereignty and severalty of the states; he as well as all the advocates of the new system, take as their strong ground the election of senators by the state legislatures, and the special representation of the states in the federal senate, to prove that internal sovereignty still remains with the states; therefore they say that the new system is so far from annihilating the state governments, that it secures them, that it cannot exist without them, that the existence of the one is essential to the existence of the other. It is true that this particular partakes strongly of that mystery which is characteristic of the system itself; but if I demonstrate that this particular, so far from implying the continuance of the state sovereignties, proves in the clearest manner the want of it, I hope the other particular powers will not be necessary to dwell upon.
The state legislatures do not chuse senators by legislative or sovereign authority, but by a power of ministerial agency as mere electors or boards of appointment; they have no power to direct the senators how or what duties they shall perform; they have neither power to censure the senators, nor to supercede them for misconduct. It is not the power of chusing to office merely that designates sovereignty, or else corporations who appoint their own officers and make their own bye-laws, or the heads of department who chuse the officers under them, such as commanders of armies, &c. may be called sovereigns, because they can name men to office whom they cannot dismiss therefrom. The exercise of sovereignty does not consist in chusing masters, such as the senators would be, who, when chosen, would be beyond controul, but in the power of dismissing, impeaching, or the like, those to whom authority is delegated. The power of instructing or superceding of delegates to Congress under the existing confederation, hath never been complained of, altho' the necessary [Volume 1, Page 287] rotation of members of Congress hath often been censured for restraining the state sovereignties too much in the objects of their choice. As well may the electors who are to vote for the president under the new constitution, be said to be vested with the sovereignty, as the state legislatures in the act of chusing senators. The senators are not even dependent on the states for their wages, but in conjunction with the federal representatives establish their own wages. The senators do not vote by states, but as individuals. The representatives also vote as individuals, representing people in a consolidated or national government; they judge upon their own elections, and, with the senate, have the power of regulating elections in time, place and manner, which is in other words to say, that they have the power of elections absolutely vested in them.
That the state governments have certain ministerial and convenient powers continued to them is not denied, and in the exercise of which they may support, but cannot controul the general government, nor protect their own citizens from the exertions of civil or military tyranny, and this ministerial power will continue with the states as long as two-thirds of Congress shall think their agency necessary; but even this will be no longer than two-thirds of Congress shall think proper to propose, and use the influence of which they would be so largely possessed to remove it.
But these powers, of which the Freeman gives us such a profuse detail, and in describing which he repeats the same powers with only varying the terms, such as the powers of officering and training the militia, appointing state officers, and governing in a number of internal cases, do not any of them separately, nor all taken together, amount to independent sovereignty; they are powers of mere ministerial agency, which may, and in many nations of Europe, are or have been vested, as before observed, in heads of departments, hereditary vassals of the crown, or in corporations; but not that kind of independent sovereignty which can constitute a member of a federal republic, which can enable a state to exist within itself if the general government should cease.
I have often wondered how any writer of sense could have the confidence to avow, or could suppose the people to be ignorant enough to believe, that, when a state is deprived of the power not only of standing armies (this the members of a confederacy ought to be) but of commanding its own militia, regulating its elections, directing or superceding its representatives or paying them their wages; who is, moreover, deprived of the command of any property, I mean source of revenue or taxation, or what amounts to the same thing, who may enact laws for raising revenue, but who may have these laws rendered nugatory, and the execution thereof superceded by the laws of Congress. This is not a strained construction, but the natural operation of the powers of Congress under the new constitution;for every object of revenue, every source of taxation, is vested in the general government. Even the power of making inspection laws, which, for obvious conveniency, is left with the several states, will be unproductive of the smallest revenue to the state governments; for, if any should arise, it is to be paid over to the coffers of Congress;--besides, the words "to make all laws necessary and proper for carrying into execution the foregoing powers, &c." give, without doubt, the power of repelling or forbidding the execution of any tax law whatever that may interfere with or impede the exercise of the general taxing power, and it would not be possible that two taxing powers should be exercised on the same sources of taxation without interfering with each other. May not the exercise of this power of Congress, when they think proper, operate not only to destroy those ministerial powers which are left with the states, but even the very forms? May they not forbid the state legislatures to levy a shilling to pay themselves, or those whom they employ, days wages? The state governments may contract for making roads (except post-roads) erecting bridges, cutting canals, or any other object of public importance; but when the contract is performed or the work done, may not Congress constitutionally prevent the payment? Certainly they may do all this and much more, and no man would have a right to charge them with breaking the law of their appointment. It is an established maxim, that wherever the whole power of the revenue or taxation is vested, there virtually is the whole effective, influential, sovereign power, let the forms be what they may: By this armies are procured, by this every other controuling guard is defeated. Every balance or check in government is only so far effective as it hath a controul over the revenue.
The state governments are not only destitute of all sovereign command of, or controul over, the revenue or any part of it, but they are divested of the power of commanding, or prescribing the duties, wages, or punishments of their own militia, or of protecting their life, property or characters from the rigours of martial law. The power of making treason laws is both a flower and an important defence of sovereignty; it is relative to and inseparable from it; to convince the states that they are consolidated into one national government, this power is wholly to be assumed by the general government. All the prerogatives, all the essential characteristics of sovereignty, both of the internal and external kind, are vested in the general government, and consequently the several states would not be possessed of any essential power, or effective guard of sovereignty.
Thus I apprehend, it is evident that the consolidation of the states, into one national government (in contradistinction from a confederacy) would be the necessary consequence of the establishment of the new constitution, and the intention of its framers--and that consequently the state sovereignties would be eventually annihilated, though the forms may long remain as expensive and burthensome remembrances, of what they were in the days when (although labouring under many disadvantages) they emancipated this country from foreign tyranny, humbled the pride, and tarnished the glory of royalty, and erected a triumphant standard to liberty and independence.
It it not my present object to decide, whether the government is a good or a bad one, it is only to prove in support of the minority, that the new system does not in reality, whatever its appearances may be, constitute a federal but a consolidated government.--From the distinguishing [Volume 1, Page 288] characteristics of these two kinds of government which I have stated, some assistance perhaps may be derived in judging which of them would be most suitable to our circumstances, and the best calculated to promote and secure the liberty and welfare of these United States.
Storing, Herbert J., ed. The Complete Anti-Federalist. 7 vols. Chicago: University of Chicago Press, 1981.
© 1987 by The University of Chicago