On the Infirmities of the Articles of Confederation

The Federalist No. 15

Even though the deficiencies of the Articles of Confederation are admitted by all, with ill consequences of all sorts in obvious abundance, some still promote the principles on which the Articles were constructed, obliging a studied review of just these principles. The basic problem arose from assuming a weak sovereign entity could manage subordinate strong sovereign entities. In such a system there are no forces for compliance other than military coercion. States will not comply from common interest, nor can agreement among them be easily reached when unanimity is required, nor will states which do comply continue when others do not. Governments were formed after all because people’s passions overrule their reason, a circumstance magnified in collectives. The only sensible alternative is to consider the objects of the federal government to be the people, not other sovereign entities.

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The Federalist No. 16

The problems with the Articles have been universally experienced by other loose confederations. Delinquencies accumulate, triggering military force, leading to civil war. If the central authority cannot afford a military force (by implication the case for the United States), states may create alliances of compliance, themselves inevitably destructive. But the more normal avenue is passive non-compliance, which is then imitated by all other member states. Even if states were willing to finance a large national army, the country’s dimensions and size of member states makes the idea infeasible. The only sensible alternative is a federal government applied directly to the people rather than one required to go through state legislatures. If states objected, they could only do so through military forces, an obvious usurpation almost certainly unacceptable to other member states. Opposition from individuals may be handled as states handle them; opposition from factions may require more extensive remedies; a violent popular paroxysm may unsettle the whole, but providing for its eventually is beyond the reach of any civic order.

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The Federalist No. 17

Federal powers will not encroach on state prerogatives because the objects of their interests are largely distinct, the federal concerned with interstate commerce, national finance, treaty negotiation, and war. But even if their domains overlapped, the states would always have greater power derived from their people, who are physically and emotionally closer to the state. This applies particularly to the administration of civil and criminal justice, the stronger area of attachment to the people, and the exclusive province of local government. History supports this conclusion, such as the experience of feudal barons relative to their monarchs.

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The Federalist No. 18

If we look to analogies from the past, the two leagues formed in Greece provide useful insights. The Amphictyon Council (containing Athens and Sparta among many others) never had enough power to control its member cities, which even in peace time wrangled with each other, the stronger taking advantage of the weaker. Athens first asserted authority, but it was then defeated in a civil war by Sparta, which internal weakness made the whole vulnerable to Alexander of Macedon. The Achaean League, while more successful in some ways, owing in part to the same laws, measures, and customs operating in its member cities, nevertheless still succumbed to internal dissentions and, as a weak league ever in search of successful external alliances, eventually to foreign enemies, the last of which, Rome, obliterated any remnant of the League.

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The Federalist No. 19

The Germanic League, whose history begins with consolidation under Charlemagne, then followed by gradual dissolution between 1000 and 1400, then into a loose confederation under an emperor and some centralized powers, nevertheless suffered all the disabilities of a sovereignty attempting to govern lesser sovereignties instead of the people directly. There were wars within, the last one devastating. There was internal exploitation and recriminations, and inevitably poor military preparations, making them vulnerable to any foreign incursion. The recent efforts to create internal subdivisions of government have just recreated the same problems in a new form. Poland and the Swiss Cantons also illustrate the point.

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The Federalist No. 20

The final example is modern Netherlands, uniting in a loose confederation seven sovereign states with equal station and unanimous consent required for important decisions. Its States-General has significant power, and its titular leader, a hereditary prince with considerable prerogatives, holds the business together. But it is torn from within, unable at times to collect money without force of arms, and assaulted from without, and now faces great peril on both counts. Experience is the oracle of truth. These examples demonstrate the consummate infelicity of a sovereign entity attempting to govern inferior sovereign entities without recourse

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The Federalist No. 21

Other than the general principle, we may see three important defects in the Articles. One is its utter failure to provide explicit powers of sanctions for non-compliance, combined with the provision (the second article and first substantive article of the Articles) that the states retain all powers not “expressly” granted the federal establishment. The second is the lack of mutual security for the states, leaving them entirely vulnerable to insurrection and mischiefs. The third concerns taxation by quotas, a form most difficult to collect, impossible to equitably estimate, and thus a source of acute grievance all by itself. A national authority must be able to raise its own revenues (rather than rely upon assessment to state legislatures), which revenues should derive principally from tariffs and excise taxes, that is, indirect taxes on the consumption of goods, rather than on the capricious and contentious direct taxes on land or per capita.

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The Federalist No. 22

Other infirmities may be identified. The legal bar on central regulation of commerce makes foreign trade agreements all but impossible to negotiate and then manage, and invites rancor and slow trade between the states themselves. The manner of raising armies precludes an adequate defense and creates great inequities in performance. The rule of supermajority for important legislation creates a tyranny of the minority, which in the end actually works to the disadvantage of the smaller states, as nothing really gets done of importance. Supermajority decision making also means there are fewer to bribe, inviting greater foreign intrigues. The crowning blow is the lack of judicial power, without which laws are all but meaningless, particularly when the structure itself favors the parts over the whole. The system is so radically vicious and unsound that it cannot be fixed from within, but must be completely overhauled. Finally, the Articles were never ratified by the people, leading some to believe that it may be repealed by individual legislatures; the fabric of the American empire should rest on the consent of the people.

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