These were the main themes, but other writers sought to focus more sharply on the crux. “The fallacy lies here,” Timothy Pickering wrote: in Europe large standing armies exist to maintain the power of absolute and hereditary monarchs and therefore by definition “are instruments to keep the people in slavery.” An army in America would serve only to protect the people who themselves maintain it through representatives who would share in any suffering such troops might create. In Britain “the armies are his [the King’s] armies, and their direction is solely by him without any control … Here the army, when raised, is the army of the people.” Judge Hanson, who condemned the “clamour against standing armies” as “a mere pretext for terrifying you, like children, with spectres and hobgobblins,” touched on another, more pragmatic point which became a standard federalist argument. If there were no standby national army, one would have to be created overnight in the case of sudden invasion or other emergencies, and it might well prove to be too little and too late. If the only armed force were the militia, Francis Corbin elaborated in the Virginia convention, the results would be either a disastrous neglect of farming or a fatal ignorance and incompetence in arms. But the militia would be part of the nation’s armed might, and that mixture of a citizen militia and a professional national army was vital. Either alone, Wilson Nicholas argued in the Virginia convention, would be a danger: an unemployed standing army would be a public menace, a militia would in itself be wholly incapable of stopping an invasion by a “powerful, disciplined army.” Further, a militia army would favor the rich, who could buy substitutes for personal service, and burden the poor, who could not. So let the rich bear the burden of financing the professional army, and the poor the burden of services when needed. The result of such a mixed military establishment will be military competence and no danger, the ideal situation which the Constitution had designed.37
It is in the context of this wide-ranging reexamination of the ancient threat of standing armies that Hamilton’s discussion of the subject in a series of well-known Federalist papers can best be understood. It is clear at once that much of what he wrote was commonplace. He too stressed America’s physical isolation, which would not necessitate a large army, any more than Britain’s island situation had required one. And he too stressed the concurrent and yet competitive role that the state militias would have. But his writing on this subject is nevertheless unique. Cutting through the visionary fears, the “gorgons, hydras, and chimeras dire,” he analyzed the real, operative process by which military power, in the projected constitutional system, could become a threat.
How, he asked, could a danger actually — not theoretically — arise? Suppose a President were determined to build a janissary army to suppress liberty. How could it be done? Short of a complete coup d’état, such an army could be created only “by progressive augmentations” of Congressional appropriations, which would take time and would require that a conspiracy between executive and legislature be sustained through successive transformations in the representative body. Now, can one realistically believe that that could happen? Would an incoming Congressman instantly “commence a traitor to his constituents and to his country”? Would no one be shrewd enough “to detect so attrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger”? If that were really the case, one should forget about representation and live under governments no larger than counties. And beyond all that, how could such a plot, developed over years, be concealed? What benign excuse could be convincingly given for such a visible buildup? None would make sense. In fact the people would not be deceived, and the project and its projectors would be quickly destroyed.
Hamilton, and other federalists following him, did not dismiss the danger of standing armies — the ancient fear persisted: “I am a mortal enemy to standing armies,” one of the federalists’ most fervent defenders of the armed forces clauses of the Constitution concluded, “in time of peace particularly.” Their aim was to show, by close analysis, that while a national army was necessary, the regular army of the United States would not — could not — be a “standing” army in the traditional sense. If it ever became that, freedom would already — for other, deeper reasons — have been destroyed: at that point “there will not be a particle of virtue in the people; they will be ripe for the most corrupt government.”38
This hardheaded realism was the essence of the federalists’ response to the opposition. Point by point they took on the objections based on inherited notions and probed their applicability in the American situation.
The key doctrine of federalism could survive criticism only to the extent that it could somehow be distinguished from the ancient belief that imperium in imperio was an illogical and unresolvable solecism. So they reexamined that old formula, took it apart, and showed, not its falsity, but its irrelevance in the American situation. The antifederalists, Hamilton wrote, obsessed with “artificial distinctions and syllogistic subtleties,” reiterated the ancient maxim that imperium in imperio is a “political monster.” But in operation, he wrote, the states and the national governments would not clash. The “supreme law of the land” clause would have the effect of linking the states’ officers, no less than the nation’s officers, to the enforcement of federal law and hence lead to a functional merger of — not conflict between — the two levels of authority. There would be no fatal clash, as “Brutus” feared, between the taxing powers of states and nation. The nation’s taxing power is specified, and under Article I, Section 10, the states retained all other taxing powers. The two governments would intersect only where they exercised concurrent powers, and concurrence is not the repugnancy that lay at the heart of the ancient precept. Simple prudence and “reciprocal forbearances” would permit a harmonious relationship, and if the national government invaded areas of taxation reserved to the states, such action would be void, and the people would make this clear.39
Oliver Ellsworth, the future chief justice, cut deeper into the problem and, in the course of a remarkable address in the Connecticut ratifying convention, explained the essential role of judicial review in resolving the ancient problem. It is said, Ellsworth declared, that Congress and the states cannot coexist in legislative powers. “I ask, why can they not? It is not enough to say that they cannot. I wish for some reason.” There is no more reason for them to conflict than there is for New York City’s laws to conflict with those of New York State or London’s with Britain’s. But, he then said, in a classic statement of judicial review,
if the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who to secure their impartiality are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is an usurpation upon the general government, the law is void, and upright independent judges will declare it to be so.
And all the federalists agreed that the law would be enforced not against states (that would be civil war and would involve the innocent along with the guilty) but against individual people, who collectively were the very source of the authority under which the government would be acting. If that were not the case, Madison wrote at the end of a learned discourse on the political miseries of the United Netherlands, then you would indeed have the hopeless situation of “a sovereignty over sovereigns, a government over governments, a legislation for communities as contradistinguished from individuals” which, just “as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destructive coertion of the sword in place of the mild and salutary coertion of the magistracy.” The ancient precept was not wrong; it did not apply. The Constitution simply avoided the dangers of dual sovereignties, real as they were.40
But federalism as a solu
tion to the venerable problem of dual sovereignties was part of a larger issue: the theoretical problem of creating a republic of large, potentially continental size. To the vehement antifederalist insistence, drawn directly from the received tradition, that almost every authority and the entire experience of mankind proved that republics could survive only as small-scale polities, the federalists countered, first, that the national government had only limited and specified powers; the states, which retained all the rest, remained republics of small dimensions; and it would be the states that would continue to regulate the affairs of everyday life. But they themselves recognized the limits of this argument: national law would be supreme where it applied and therefore the national government would have effective power over the use of coercive force, over justice, and over the economy. So they turned to the ancient precept itself, probed its logic and validity, and ended by demonstrating its irrelevance for the American system.
Their mood was typified by Edmund Randolph’s remark in the Virginia convention that he was not impressed “that some of the most illustrious and distinguished authors” said that republicanism is impractical in a country of large extent: “I reply, that authority has no weight with me till I am convinced that, not the dignity of names but the force of reasoning, gains my assent.” The famous examples and analogies — Switzerland, particularly — did not apply.
The extent and situation of that country [Switzerland] is totally different from ours; their country is surrounded by powerful, ambitious, and reciprocally jealous nations; their territory small, and soil not very fertile.
He was convinced that if American laws were made with integrity and executed with wisdom, the extent of the country would be no problem. Francis Corbin too, in the same debate, rejected what he called the “old worn-out idea that a republican government is best calculated for a small territory … How small must a country be to suit the genius of republicanism? In what particular extent of country can a republican government exist? … Too small an extent will render a republic weak, vulnerable, and contemptible. Liberty, in such a petty state, must be on a precarious footing; its existence must depend on the philanthropy and good nature of its neighbors.” He believed that the centralized national government would tend to concentrate and conciliate conflicting opinions within a single forum, better organized and disciplined than thirteen scattered policy-making bodies attempting to fuse their formulated views into a national policy. And yet the heterogeneity would guarantee that a majority would never concur sufficiently to oppress a minority. Hamilton too asked how small a country must be to satisfy Montesquieu’s prescription. If you think about it carefully, Hamilton said, the dimensions Montesquieu must have had in mind were far short of those of the present states. Did the antifederalists now propose, accordingly, to split up the states “into an infinity of little jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord and the miserable objects of universal pity or contempt”? What an “infatuated policy” that would be — what “a desperate expedient.”41
But these were general and vague approaches to a problem that required much more specific formulations. The American nation, it was quickly pointed out, would not be a singular but a compound entity, a confederate republic, each unit of which (the states) would be relatively small yet the whole large enough to protect itself and serve the society’s common needs. True, as James Wilson said, creating a “confederate republic … left us almost without precedent or guide, and consequently without the benefit of that instruction which in many cases may be derived from the constitution and history and experience of other nations.” For the Swiss and Dutch examples, he agreed, were irrelevant; so too were the examples of classical antiquity. But the theory, at least, of confederate republics was not unknown. Montesquieu himself, Hamilton pointed out early in the debate, had developed the idea as a way of “extending the sphere of popular government and reconciling the advantages of monarchy with those of republicanism.” And he had also suggested an example of “‘an excellent confederate republic,’” namely, the Lycian (c. second century B.C.), whose central body had in fact had “the most delicate species of interference in [the individual states’] internal administration.” That strange conglomeration of cities and republics was, however, a very strained example or parallel; nevertheless, the theory of confederate republics was valid — for reasons the ancients and Montesquieu could never have conceived of. For America alone had developed fully the “vital principle” of representation — “the chain of communication between the people and those to whom they had committed the exercise of the powers of government.” And that principle rendered all earlier considerations of size irrelevant. Representation made possible a perfect compromise: a confederated state large enough to protect itself but small enough to retain the freedoms of a republic.42
These were singular notes in a developing harmony of opinion. The great crescendo was eventually sounded at a higher level by Madison and Hamilton in several of their most famous Federalist papers — but they were preceded by John Stevens’ premonitory “Americanus” papers. Stevens, a New Jersey lawyer who would later frame the first patent laws and attain fame as an engineer and developer of steam transport, attacked the insistence that “the axioms of Montesquieu, Locke, etc., in the science of politics are as irrefragable as any in Euclid,” and ridiculed the idea of hunting for precedents in Europe. It would be “downright madness to shackle ourselves with maxims and principles which are clearly inapplicable to the nature of our political institutions. The path we are pursuing is new, and has never before been trodden by man.” It was the venerated ancient theorists, the systematizers, who posed the most difficult problems. To concede to their “maxims and principles … would be an unpardonable indiscretion.” What mattered most was America’s unique historical experience. Montesquieu’s ideas, after all, had been formed in the Old World: “Had he been an American, and now living, I would stake my life on it, he would have formed different principles.”
In the new nation, Stevens explained, representation — “the hinge on which all republican governments must move” — will obviate the confusions of democracy in a state of large size, and bicameralism and the “revisory power” of the executive and judiciary will further inhibit the development of the “turbulent spirit.” But there were deeper reasons for seeing the large size of a republican nation as a positive advantage. “The gusts of passion,” Stevens wrote, twenty days before the publication of Madison’s Federalist X, destructive in a small territory, dissipate in a large state. Small republics
ever have been, and, from the nature of man, ever will be, liable to be torn to pieces by faction. When the citizens are confined within a narrow compass, as was the case of Sparta, Rome, etc., it is within the power of a factious demagogue to scatter sedition and discontent instantaneously thro’ every part of the state.
But in an extensive federal system like that of the United States, factions lose their force before they reach the seat of government. “The different powers are so modified and distributed as to form mutual checks upon each other,” thus preventing a plebiscitarian upheaval. The people at large will not need to maintain eternal vigilance. Their representatives and the internal checks of the system itself will do the job for them, and therefore all that is required of the people is to participate in frequent elections and attend closely to their own personal interests. The American government, for its success, will require
nothing more of its subjects than that they should study and pursue merely their own true interest and happiness … A government thus founded on the broad basis of human nature, like a tree which is suffered to retain its native shape, will flourish for ages with little care or attention.
In this vein Stevens’ ideas developed, fructified, in complex ways. Feeling his way through venerable Old World precedents that he felt obliged to reconsider — to think through, test, and where necessary reformulate — he ridiculed the idea that analogies between Brita
in and America were useful except insofar as both nations’ histories prove that “it is impossible to subjugate a numerous and free people spread over a wide extent of country without the intervention and concurrence of adventitious and extrinsic causes.” He condemned again and again the “faction, instability, and frequent revolutions” inherent in small republics and argued that large republics can contain and control insurrections better than small ones, and thereafter can create reconciliation more readily. He denied that there were more abrasive interests in large states than in small and declared that an “infinite number and variety of distinct and jarring interests … necessarily prevail among the individuals of a society in a state of civilization.” If the government does not serve to reconcile these clashing interests, “I say there is an end of every thing … we must then relinquish all our ideas of the efficiency of government as mere chimeras.”43
The Ideological Origins of the American Revolution Page 43