Articles. In Federalist No. 21 he deals with the want of “SANCTION” or means of enforcement of the laws passed by Congress; the absence of a “mutual guaranty of the state governments” which would allow the national government to intervene in cases of rebellion against the duly constituted state governments; and the lack of any just or satisfactory principle or standard for determining the “QUOTAS” or contributions of each State to the national treasury. In Federalist No. 22, he remarks on the want of authority under the Articles to regulate interstate commerce and the lack in them of any workable means to raise an army.
He then concentrates on both the structural and the procedural defects of the Articles. Equality of State suffrage in the Congress, coupled with the need to secure the approval of nine States for the passage of a law has, he asserts, created a situation that allows for a minority veto, contrary to the republican principle of majority rule. Moreover, he notes, the absence of the States from Congress has often resulted in a “single vote” being sufficient to block action. He regards “the want of a judiciary power” to be “a circumstance which crowns the defects of the Confederation.” Anticipating arguments he will later develop with regard to the separation of powers, he contends that the powers necessary for an effective national government cannot be vested in a single legislative body. To do so would either cause its breakdown or, if not that, an accumulation of power in one body that would amount to tyranny. Finally, he emphasizes the importance of having a popularly based Constitution, noting that, under the proposed Constitution, the new government, unlike the Articles, will rest on the consent of the people.
PART III
Powers That Should Be Exercised by a National Government
Federalist essays 23 through 36 are devoted to showing that the powers delegated to the national government by the proposed Constitution are necessary for a government that is to overcome the difficulties inherent in the Articles and to preserve the Union. At various places, Publius also endeavors to show that the powers delegated to the national government, particularly those relating to the national defense and taxation, will pose no dangers to the existence of the States or the liberties of the people.
In paper No. 23, Publius sets forth a proposition that he repeats throughout The Federalist to justify the powers delegated to the national government—namely, that “the means ought to be proportioned to the end.” If, that is, the national government is charged with a responsibility, it must possess the unfettered authority to discharge that responsibility. In the case of the national defense, he concludes that the powers of the national government must be virtually unlimited, because the means of defense depends upon factors and circumstances that cannot be fully anticipated.
Publius applies this reasoning in Federalist No. 24 in answering the objections of many Anti-Federalists that the proposed Constitution contains no provision against a standing army in times of peace. A constitutional prohibition against a standing army in time of peace, he points out, would be most inappropriate and imprudent, particularly in light of the nation’s western land interests and the need to protect its naval facilities. But his response to the Anti-Federalists does not rest upon this ground alone. He notes that only two States have such provisions against standing armies in their constitutions and that, moreover, there is no such provision to be found in the Articles. Beyond this, he can see no need for any such provision, given that the proposed Constitution places the authority for raising armies in the hands of the representatives of the people, thereby providing a check on the military establishment.
In essay No. 25, Publius completely rejects the proposition that the state governments ought to assume the functions performed by a national standing army. This, he writes, would constitute “an inversion of the primary principle of our political association; as it would in practice transfer the care of the common defence from the federal head to the individual members: a project oppressive to some states, dangerous to all, and baneful to the confederacy.” He envisions any such arrangement as subjecting the security of the whole to the willingness of the parts to fulfill their obligations; he can imagine how rivalries might even develop among the States that could eventually lead to the disintegration of the Union; and he maintains that the more powerful States might pose a danger to the existence of the national government.
In Federalist Nos. 26 through 29, Publius focuses on still other aspects of the controversy surrounding standing armies in time of peace. In No. 26, for instance, he points to the reasonableness and appropriateness of the constitutional provision (Article 1, Section 8, Paragraph 12) which limits appropriations for raising and supporting an army to two years—a provision which, he argues, meets the requirements of national defense while preventing the potential evils that can arise from a permanent standing army. In a more philosophical vein, he touches upon a basic theme that recurs throughout the essays: that the concern for private rights and liberty must always be balanced against the imperative need for an energetic government, one capable of defending the nation against foreign and domestic enemies. In addition, he emphasizes that any successful conspiracy or scheme to usurp the liberty and rights of the people through force of arms would require time to develop and mature, a virtual impossibility given the accountability of the members of Congress and the anticipated vigilance of the States.
Publius makes clear (No. 27) that he does not anticipate the national government’s having, as a matter of course, to resort to the use of force to execute its laws. Indeed, he believes, force will rarely be required once the proposed system is put into operation. As soon as the operations of the national government become part of the ordinary life of its citizens, their attachment to it will grow. Even State officers will find themselves integrated into the national system through their obligation to uphold legitimate national laws. Nevertheless, Publius does acknowledge (No. 28) that there will be circumstances which will require the use of national force. He again remarks, however, that the vigilance and potential resistance of State governments “afford complete security against invasions of the public liberty by the national authority.” Nor does he see (No. 29) that national control over the State militia will pose any threat to the liberties of the people or the security of the States. Among the reasons for this, he maintains, is that the vast majority of the militia will consist of ordinary citizens whose attachment to the community will not allow them to participate in any plot to subvert popular rights and liberties.
Starting with Federalist No. 30, Publius devotes seven papers to a discussion of the national taxing power and its relationship to the taxing powers of the States. At the outset, he makes it clear that the national government must possess unfettered authority to raise revenue in order to fulfill its constitutional responsibilities. Repeating the line of argument used in No. 23, he argues that “every POWER ought to be proportionate to its OBJECT” and that to restrict the national government to “external” taxation—that is, to “duties on imported articles”—would be disastrous, because it is impossible to foretell with certainty what the future needs of the national government might be. In Federalist No. 31, he again emphasizes that the national government must possess a power to tax commensurate with its responsibilities—a power “free from every other control but a regard to the public good and the sense of the people.”
Publius is also anxious to show that the national government’s power to tax will not lead to the extinction of the States. By way of answering those who contend that vesting the national government with an “indefinite power of taxation” will “deprive . . . [the States] of the means of providing for their own necessities,” he answers (No. 31) by pointing out the impossibility of dealing rationally with the infinite “conjectures about usurpation” which spring from the unwarranted fears of the Anti-Federalists. In Federalist No. 32, he takes pains to point out that the States “clearly retain all the rights of sovereignty” that were not “exclusively delegated” to the national government, prohibited to them, or whose exercise would be “totally contradictory and repugnant” to the exercise of delegated national powers. Thus, he shows that, save for duties on imports, the States possess a concurrent and discretionary power to tax the same sources as the national government. He demonstrates (No. 33) that the “necessary and proper” clause cannot be used to deprive the States of their powers to tax. Any law “abrogating or preventing the collection of a tax laid by the authority of a State (unless on imports and exports) would not be the