FEDERALIST No. 22

The Same Subject Continued
(Other Defects of the Present Confederation)
From the New York Packet.
Friday, December 14, 1787.

ALEXANDER HAMILTON

To the People of the State of New York:

IN ADDITION to the defects already enumerated in the existing federal system, there are others of not less importance,
which concur in rendering it altogether unfit for the administration of the affairs of the Union.

The want of a power to regulate commerce is by all parties allowed to be of the number. The utility of such a power has
been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained
upon the subject, little need be added in this place. It is indeed evident, on the most superficial view, that there is no object,
either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. The want of it
has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of
dissatisfaction between the States. No nation acquainted with the nature of our political association would be unwise enough
to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they
were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while
they found from experience that they might enjoy every advantage they desired in our markets, without granting us any
return but such as their momentary convenience might suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, in
ushering into the House of Commons a bill for regulating the temporary intercourse between the two countries, should
preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the
commerce of Great Britain, and that it would be prudent to persist in the plan until it should appear whether the American
government was likely or not to acquire greater consistency.[1]

Several States have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that
kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and
dissimilar views in the State, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the
same obstacles to a uniformity of measures continue to exist.

The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different
instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not
restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and
discord than injurious impediments to the intercourse between the different parts of the Confederacy. "The commerce of the
German empire[2] is in continual trammels from the multiplicity of the duties which the several princes and states exact upon
the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which
Germany is so happily watered are rendered almost useless." Though the genius of the people of this country might never
permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State
regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than
that of foreigners and aliens.

The power of raising armies, by the most obvious construction of the articles of the Confederation, is merely a power of
making requisitions upon the States for quotas of men. This practice in the course of the late war, was found replete with
obstructions to a vigorous and to an economical system of defense. It gave birth to a competition between the States which
created a kind of auction for men. In order to furnish the quotas required of them, they outbid each other till bounties grew
to an enormous and insupportable size. The hope of a still further increase afforded an inducement to those who were
disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. Hence,
slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense;
continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis
of a disbanded army. Hence, also, those oppressive expedients for raising men which were upon several occasions practiced,
and which nothing but the enthusiasm of liberty would have induced the people to endure.

This method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden.
The States near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even
exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent,
in their exertions. The immediate pressure of this inequality was not in this case, as in that of the contributions of money,
alleviated by the hope of a final liquidation. The States which did not pay their proportions of money might at least be
charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. We shall not,
however, see much reason to reget the want of this hope, when we consider how little prospect there is, that the most
delinquent States will ever be able to make compensation for their pecuniary failures. The system of quotas and requisitions,
whether it be applied to men or money, is, in every view, a system of imbecility in the Union, and of inequality and injustice
among the members.

The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and
every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of
power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with
Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government,
which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a
majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never
counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority
of the people of America;[3] and two thirds of the people of America could not long be persuaded, upon the credit of
artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The
larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation
of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice
the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how
peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would
prove fatal to its duration.

It may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent to the most
important resolutions; and it may be thence inferred that nine States would always comprehend a majority of the Union. But
this does not obviate the impropriety of an equal vote between States of the most unequal dimensions and populousness; nor
is the inference accurate in point of fact; for we can enumerate nine States which contain less than a majority of the people;
[4] and it is constitutionally possible that these nine may give the vote. Besides, there are matters of considerable moment
determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted
in favor of the sufficiency of a vote of seven States, would extend its operation to interests of the first magnitude. In addition
to this, it is to be observed that there is a probability of an increase in the number of States, and no provision for a
proportional augmentation of the ratio of votes.

But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the
majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the
sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in
the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of
the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar
to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in
theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a
supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the
energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto,
to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness
or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for
action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a
majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the
views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the
national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public
good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things
will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It
is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its
situation must always savor of weakness, sometimes border upon anarchy.

It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic
faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The
mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress
of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the
doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE,
but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing
what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at
particular periods.

Suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. Suppose the
necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the
war, with views that might justify us in making separate terms. In such a state of things, this ally of ours would evidently
find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of
all the votes were requisite to that object, than where a simple majority would suffice. In the first case, he would have to
corrupt a smaller number; in the last, a greater number. Upon the same principle, it would be much easier for a foreign
power with which we were at war to perplex our councils and embarrass our exertions. And, in a commercial view, we may
be subjected to similar inconveniences. A nation, with which we might have a treaty of commerce, could with much greater
facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial
to ourselves.

Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous
advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to
sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the
nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state.
The world has accordingly been witness to few examples of this species of royal prostitution, though there have been
abundant specimens of every other kind.

In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great
pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by
superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the
obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign
corruption in republican governments. How much this contributed to the ruin of the ancient commonwealths has been
already delineated. It is well known that the deputies of the United Provinces have, in various instances, been purchased by
the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court,
intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those
deputies. And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner
that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in Europe, in a single
day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled.

A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power.
Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United
States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects
individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these
determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be
instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is
in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are
courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the
came court differing from each other. To avoid the confusion which would unavoidably result from the contradictory
decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the
rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

This is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of
being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate
jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of
local views and prejudices, and from the interference of local regulations. As often as such an interference was to happen,
there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws;
for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe
their official existence.

The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures,
and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation,
the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every
member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it
possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a
foundation?

In this review of the Confederation, I have confined myself to the exhibition of its most material defects; passing over those
imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great
measure rendered abortive. It must be by this time evident to all men of reflection, who can divest themselves of the
prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment
but by an entire change in its leading features and characters.

The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited
in the Union. A single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been
heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it
with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit,
ought to reside in the United States. If that plan should not be adopted, and if the necessity of the Union should be able to
withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its
dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon
Congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder
into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity
might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus
entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus, we
should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous
to avert.

It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE.
Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate
questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of
legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the
law by which it was ratified. However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to
revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves
the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority.
The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of
national power ought to flow immediately from that pure, original fountain of all legitimate authority.

PUBLIUS

    1. This, as nearly as I can recollect, was the sense of his speech on
    introducing the last bill.

    2. Encyclopedia, article "Empire."

    3. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South
    Carolina, and Maryland are a majority of the whole number of the States,
    but they do not contain one third of the people.

    4. Add New York and Connecticut to the foregoing seven, and they will be
    less than a majority.
Text supplied by
Project Gutenberg
The Constitution Society
& The Avalon Project
Philosophy of
Evil
Socialism in America

"The struggle of History is not
between the bourgeoisie and the
proletariat; it is between government
and the governed."

Jerry McDaniel
The Illinois Conservative