On the Necessity of Energy in the Federal Government

The Federalist No. 23

The means supplied in the constitution to affect its goals must be commensurate with the goals. With respect to national defense, the means must be unlimited, as the dangers are unlimited. Relative to other responsibilities—internal peace, regulating internal and external commerce, foreign affairs—the powers must also be unencumbered by state constraints. Indeed, the laws must extend to the people, not the states. The powers granted the federal government in the new constitution are required and not too extensive. A multiplicity of unions, or a return to confederacy, makes no sense.

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The Federalist No. 24

The only specific complaint lodged against the proposed constitution regarding its military provisions has been its lack of a prohibition on peacetime standing armies. However, these oppositions have not been attended by any argument in their favor. If we imagined one, it would see the power lodged with the executive, found in state constitutions, or in the Articles of Confederation. The power is lodged with the popularly elected legislature, is found in only two state constitutions, and not at all in the Articles. Indeed, prohibiting peacetime armies invites grave dangers in the face of possible military adventures by European countries and by Indians and their allies on the western border. Peacetime navies are also a must.

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The Federalist No. 25

Transferring responsibility for defense to the states contravenes a basic principle of union and the common defense. States would have inequitable requirements relative to dangers which are common to all, which would lead to animosities and perhaps conflict between the states themselves. The Constitution is right to bar states from having ships or troops without congressional consent. An army, once commissioned, is hard to decommission if any form of danger persists (and they will); timing, to what degree, with what perception to other nations? A prohibition on raising armies in peacetime makes us easy prey. The late war has revealed the weakness of relying upon state militias for national defense. Even those states such as Pennsylvania with soft prohibitions on standing armies now have them for local defense.

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The Federalist No. 26

Any stable government must find the right balance between power and liberty. All but two states recognize the necessity of military power as an instrument of security; these states do not prohibit standing armies, they just warn against them, a warning of no value once they raise standing armies to repel expected troubles. Note that our resistance to standing armies arises from the English rules around the 1688 Glorious Revolution, which rules require the parliament to approve any standing armies. This is exactly what our constitution does, with the further limitation that funding can be for no more than two years, an interval sufficiently short to prevent a large army amassing before review and resistance would build within the legislature, state governments, and the people. If an army is raised which in fact usurps popular liberties, it was raised for a reason, which reason justified its existence, and about which we could do nothing. However, this is far less likely than the opposite problem, of being insufficiently prepared and giving our liberties to a foreign power.

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The Federalist No. 27

Obedience to the law is likely proportional to the quality of governance. The wider amplitude, a Senate composed of select individuals with greater knowledge and practice given its terms, and a greater immunity to factions augers well for federal performance. Given its range and power, there is less danger for popular revolt against the federal than against state governments. If the people are closely connected to its government, they are less likely to require compulsion to comply; the new constitution, addressing the people directly, creates circumstances for such engagement. In time the people will see federal and state authorities on equal footing, but will grant the federal higher ground as it can marshal national resources and operate as the Supreme Law of the Land, conditions more conducive to popular support than insurrection.

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The Federalist No. 28

A peaceable kingdom lasting forever is utopian; there will be revolts requiring military force to suppress. Small uprisings may be handled by state militias, but larger revolts will require a real army, either by the state or by the federal, as Massachusetts and Pennsylvania have discovered. Under the proposed system, however, the people are the final security against military abuse by the government. Should the government betray the people, a revolt against the federal authority would have better prospects than against a state, where proximity and speed of reaction would be decisive. But our federal system gives great power to the people, who would prevail by organizing the states against the federal, or the federal against the states, winning with either combination. The large extent of the country would also favor a combination of the states and the people. Note as well that present resources preclude a large enough army to be oppressive, and as resources grow, so will the people and their strength, likely never reaching a point where the federal authority has a natural advantage.

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The Federalist No. 29

Public defense requires a trained and discipline militia across all states. The constitution gives Congress powers to organize, arm, and discipline militias, with states reserving the power of appointing officers and training. A strong militia is the best guard against a standing national army. The Constitution’s silence on the question of ad hoc military groups to deal with local situations does not deprive Congress of creating them as is necessary. A militia cannot be a danger to liberty. It would take far too much to create and coordinate them at the federal level, their commissions would weaken the economy, and they would revolt anyway. However, a select, disciplined corps would be a strength for national security. Considering the militia a danger to our liberties is like fables of grotesques.

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The Federalist No. 30

The federal authority must raise money through taxation. Without adequate revenue, the state must either resort to plunder—witness the Ottoman empire—or perish—witness our own Confederation. The system of requisitions and quotas upon the states has clearly failed for want of compliance by the states; the federal authority must have its own taxing power. But it must be a general power, sufficient to the need, not restricted to import duties. Otherwise, when the inevitable exigency such as war happens, demanding federal borrowing, the government will find no willing lenders on sensible terms.

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The Federalist No. 31

Disquisitions must begin from first principles, like geometry. Even though morals and politics are less certain, they are more certain than many believe; obscurity more often reflects the person than the subject. How else to explain the irrational opposition to a general taxing power. Governments must have power commensurate with their responsibilities. Defense alone requires the capacity for indefinite resources. As the states have shown they cannot comply with requisitions, taxing is the only alternative. An argument against this claim is that unlimited federal taxing power would eventually eliminate state taxing power. If based on the prospect of federal usurpation, the argument fails for want of any credible construction of successful federal usurpation; state usurpation of the federal is more likely.

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The Federalist No. 32

Even though states have more power, they should be granted unlimited taxing power on their own, except on imports and exports, which powers are not abridged by the Constitution. Constitutional limitations on state sovereignty take three forms: exclusive grant to the federal, grant to federal and prohibition to the state, and grant to the federal which logically excludes the states. All others are assumed to be either exclusive to the states or shared between the two sovereign levels. The taxing power is of the latter form, a concurrent power. This is implied by the Constitution’s general grant of taxing power to the federal and the specific prohibition on state’s taxing imports and exports—every other object of taxation must be accessible to both federal and state authorities. Inconveniences may arise from this construction, but the Constitution warrants it.

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The Federalist No. 33

Neither the “necessary and proper” clause nor the “supreme law of the land” clause add any powers to the federal government which are not implied by the nature of constitutions. The “necessary and proper” clause was probably added to forestall state usurpation of the federal domain, the greater danger, by leaving nothing to construction. Who judges where a law is necessary and proper is first the Congress itself and lastly the people. The laws generated under any constitution are necessarily supreme within the ambit of its powers. However, in a country with mixed sovereignties, the supremacy clause does not give Congress powers beyond those enumerated in the Constitution. Any law passed outside the ambit of its power constitutes usurpation.

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The Federalist No. 34

Concurrent jurisdictions for taxing gives states ample resources for income, particularly considering their more limited needs. Any theoretical objections to concurrency fall before the historical record, such as ancient Rome, where concurrent legislatures had mutual nullification powers. These do not apply here, allowing the system to reach a natural balance over time. State needs are relatively constrained, but federal needs are potentially unlimited. We must consider the future as well as the present in structuring the government, and create capacities to meet unknown future contingencies, although we can be all but certain that among these will be defense against a great power, requiring massive funding and debt. These can only be supported by access to all objects of taxation at the federal level. Assigning objects of taxation to a jurisdiction a priori either cripples the states or cripples the federal authority. The convention made the right choice in concurrency.

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The Federalist No. 35

Restricting the objects of taxation available to the federal authority would lead inevitably to inequities and insufficient resources at times. Limiting taxes to imports, for example, would promote smuggling, economic dislocation, and inequitable burdens by merchant and state. Even though import taxes are self-limiting (at some point imports cease), if they were the only resource inventions would be applied which would be inevitably unfavorable. On this subject relative to concern that the House is too small to represent all constituents (treated in detail in 55-58): a one-to-one representation is impossible, and unlikely given voter preferences for someone other than their own specific class to represent them, merchants being the general choice of mechanics and manufacturers. The learned professions when elected tend to mediate other interests, and the landed interests tend to elect from their own moderate owners. Taxation as a topic requires the most to learn and understand, from which a natural interest in constituent interests will flow.

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The Federalist No. 36

Exceptions to the pattern of merchants, land proprietors and lawyers as representatives does not mitigate the principle. Even a very large representative body cannot directly represent every class or interest. Some object that federal taxing authorities will not have enough local knowledge. We say that local knowledge is accessible, that the predominant form of federal taxation—duties—do not require local knowledge particularly, that land and houses must be assessed locally but which information is then easily found (the administration only required to specify and hire assessors), and if these fail the federal authority may work through the state authority. Adding requisitions as a possibility in the Constitution would encourage their use, which use has been a disaster for the Confederation. Duplicate taxes are unlikely for want of significant duplication of objects, undue federal influence on states is less likely than undue state influence on the federal, and double taxation also unlikely for want of duplication of objects. If the federal authority requires indirect taxes, it will so far as possible secure them from the wealthy. While poll taxes are invidious, they should not be prohibited in the Constitution; national emergencies may require all available means.

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