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fp16.txt
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THE tendency of the principle of legislation for States, or communities,
in their political capacities, as it has been exemplified by the experiment
we have made of it, is equally attested by the events which have befallen
all other governments of the confederate kind, of which we have any account,
in exact proportion to its prevalence in those systems. The confirmations
of this fact will be worthy of a distinct and particular examination.
I shall content myself with barely observing here, that of all the confederacies
of antiquity, which history has handed down to us, the Lycian and Achaean
leagues, as far as there remain vestiges of them, appear to have been
most free from the fetters of that mistaken principle, and were accordingly
those which have best deserved, and have most liberally received, the
applauding suffrages of political writers. This exceptionable principle may, as truly as emphatically, be styled
the parent of anarchy: It has been seen that delinquencies in the members
of the Union are its natural and necessary offspring; and that whenever
they happen, the only constitutional remedy is force, and the immediate
effect of the use of it, civil war. It remains to inquire how far so odious an engine of government, in its
application to us, would even be capable of answering its end. If there
should not be a large army constantly at the disposal of the national
government it would either not be able to employ force at all, or, when
this could be done, it would amount to a war between parts of the Confederacy
concerning the infractions of a league, in which the strongest combination
would be most likely to prevail, whether it consisted of those who supported
or of those who resisted the general authority. It would rarely happen
that the delinquency to be redressed would be confined to a single member,
and if there were more than one who had neglected their duty, similarity
of situation would induce them to unite for common defense. Independent
of this motive of sympathy, if a large and influential State should happen
to be the aggressing member, it would commonly have weight enough with
its neighbors to win over some of them as associates to its cause. Specious
arguments of danger to the common liberty could easily be contrived; plausible
excuses for the deficiencies of the party could, without difficulty, be
invented to alarm the apprehensions, inflame the passions, and conciliate
the good-will, even of those States which were not chargeable with any
violation or omission of duty. This would be the more likely to take place,
as the delinquencies of the larger members might be expected sometimes
to proceed from an ambitious premeditation in their rulers, with a view
to getting rid of all external control upon their designs of personal
aggrandizement; the better to effect which it is presumable they would
tamper beforehand with leading individuals in the adjacent States. If
associates could not be found at home, recourse would be had to the aid
of foreign powers, who would seldom be disinclined to encouraging the
dissensions of a Confederacy, from the firm union of which they had so
much to fear. When the sword is once drawn, the passions of men observe
no bounds of moderation. The suggestions of wounded pride, the instigations
of irritated resentment, would be apt to carry the States against which
the arms of the Union were exerted, to any extremes necessary to avenge
the affront or to avoid the disgrace of submission. The first war of this
kind would probably terminate in a dissolution of the Union. This may be considered as the violent death of the Confederacy. Its more
natural death is what we now seem to be on the point of experiencing,
if the federal system be not speedily renovated in a more substantial
form. It is not probable, considering the genius of this country, that
the complying States would often be inclined to support the authority
of the Union by engaging in a war against the non-complying States. They
would always be more ready to pursue the milder course of putting themselves
upon an equal footing with the delinquent members by an imitation of their
example. And the guilt of all would thus become the security of all. Our
past experience has exhibited the operation of this spirit in its full
light. There would, in fact, be an insuperable difficulty in ascertaining
when force could with propriety be employed. In the article of pecuniary
contribution, which would be the most usual source of delinquency, it
would often be impossible to decide whether it had proceeded from disinclination
or inability. The pretense of the latter would always be at hand. And
the case must be very flagrant in which its fallacy could be detected
with sufficient certainty to justify the harsh expedient of compulsion.
It is easy to see that this problem alone, as often as it should occur,
would open a wide field for the exercise of factious views, of partiality,
and of oppression, in the majority that happened to prevail in the national
council. It seems to require no pains to prove that the States ought not to prefer
a national Constitution which could only be kept in motion by the instrumentality
of a large army continually on foot to execute the ordinary requisitions
or decrees of the government. And yet this is the plain alternative involved
by those who wish to deny it the power of extending its operations to
individuals. Such a scheme, if practicable at all, would instantly degenerate
into a military despotism; but it will be found in every light impracticable.
The resources of the Union would not be equal to the maintenance of an
army considerable enough to confine the larger States within the limits
of their duty; nor would the means ever be furnished of forming such an
army in the first instance. Whoever considers the populousness and strength
of several of these States singly at the present juncture, and looks forward
to what they will become, even at the distance of half a century, will
at once dismiss as idle and visionary any scheme which aims at regulating
their movements by laws to operate upon them in their collective capacities,
and to be executed by a coercion applicable to them in the same capacities.
A project of this kind is little less romantic than the monster-taming
spirit which is attributed to the fabulous heroes and demi-gods of antiquity. Even in those confederacies which have been composed of members smaller
than many of our counties, the principle of legislation for sovereign
States, supported by military coercion, has never been found effectual.
It has rarely been attempted to be employed, but against the weaker members;
and in most instances attempts to coerce the refractory and disobedient
have been the signals of bloody wars, in which one half of the confederacy
has displayed its banners against the other half. The result of these observations to an intelligent mind must be clearly
this, that if it be possible at any rate to construct a federal government
capable of regulating the common concerns and preserving the general tranquillity,
it must be founded, as to the objects committed to its care, upon the
reverse of the principle contended for by the opponents of the proposed
Constitution. It must carry its agency to the persons of the citizens.
It must stand in need of no intermediate legislations; but must itself
be empowered to employ the arm of the ordinary magistrate to execute its
own resolutions. The majesty of the national authority must be manifested
through the medium of the courts of justice. 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. To this reasoning it may perhaps be objected, that if any State should
be disaffected to the authority of the Union, it could at any time obstruct
the execution of its laws, and bring the matter to the same issue of force,
with the necessity of which the opposite scheme is reproached. The pausibility of this objection will vanish the moment we advert to
the essential difference between a mere NON-COMPLIANCE and a DIRECT and
ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary
to give effect to a measure of the Union, they have only NOT TO ACT, or
to ACT EVASIVELY, and the measure is defeated. This neglect of duty may
be disguised under affected but unsubstantial provisions, so as not to
appear, and of course not to excite any alarm in the people for the safety
of the Constitution. The State leaders may even make a merit of their
surreptitious invasions of it on the ground of some temporary convenience,
exemption, or advantage. But if the execution of the laws of the national government should not
require the intervention of the State legislatures, if they were to pass
into immediate operation upon the citizens themselves, the particular
governments could not interrupt their progress without an open and violent
exertion of an unconstitutional power. No omissions nor evasions would
answer the end. They would be obliged to act, and in such a manner as
would leave no doubt that they had encroached on the national rights.
An experiment of this nature would always be hazardous in the face of
a constitution in any degree competent to its own defense, and of a people
enlightened enough to distinguish between a legal exercise and an illegal
usurpation of authority. The success of it would require not merely a
factious majority in the legislature, but the concurrence of the courts
of justice and of the body of the people. If the judges were not embarked
in a conspiracy with the legislature, they would pronounce the resolutions
of such a majority to be contrary to the supreme law of the land, unconstitutional,
and void. If the people were not tainted with the spirit of their State
representatives, they, as the natural guardians of the Constitution, would
throw their weight into the national scale and give it a decided preponderancy
in the contest. Attempts of this kind would not often be made with levity
or rashness, because they could seldom be made without danger to the authors,
unless in cases of a tyrannical exercise of the federal authority. If opposition to the national government should arise from the disorderly
conduct of refractory or seditious individuals, it could be overcome by
the same means which are daily employed against the same evil under the
State governments. The magistracy, being equally the ministers of the
law of the land, from whatever source it might emanate, would doubtless
be as ready to guard the national as the local regulations from the inroads
of private licentiousness. As to those partial commotions and insurrections,
which sometimes disquiet society, from the intrigues of an inconsiderable
faction, or from sudden or occasional illhumors that do not infect the
great body of the community the general government could command more
extensive resources for the suppression of disturbances of that kind than
would be in the power of any single member. And as to those mortal feuds
which, in certain conjunctures, spread a conflagration through a whole
nation, or through a very large proportion of it, proceeding either from
weighty causes of discontent given by the government or from the contagion
of some violent popular paroxysm, they do not fall within any ordinary
rules of calculation. When they happen, they commonly amount to revolutions
and dismemberments of empire. No form of government can always either
avoid or control them. It is in vain to hope to guard against events too
mighty for human foresight or precaution, and it would be idle to object
to a government because it could not perform impossibilities.