The Consequences of Hostilities Between the States (Hamilton)
Hamilton, in an effort to illuminate the true effects of potential disunion, argues that hostilities between the states would be a harbinger to liberty. War between the states would have the consequence of destroying property, plundering and causing a lot of devastation since war has become “ towns taken and retaken, of battles that decide nothing; of retreats more beneficial than victories, of much effort and little acquisition.”
Hamilton, in a clear reference to Hobbes and the state of nature, argues that the large (more populous) states would quickly overrun their less populous neighbors. He paints a picture in which small states would have no choice but to create standing armies (which was well-known to be a threat to liberty almost universally by the populace) in order to protect themselves. In addition, these small states are likely to create confederacies of their own in order to secure greater security against more powerful populace states. He argues that there will be frequent war and constant apprehension that will erode liberty. “ Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates.” Or as Benjamin Franklin famously put it, “Those who sacrifice liberty for security are guaranteed neither.”
Hamilton goes on to compare Great Britain with the current situation with the states. He argues that Great Britain can get by without a standing army because it is isolated from its neighbors on the continent and there is internal peace with Scotland. However, the situation in America is different. There were still foreign armies not far from the Confederacy and with the current state of relations between the states, standing armies were inevitable, leading to eroding liberty. Only by staying united can America gain the same advantages of Great Britain. If instead, the confederacy dissolves into complete separated states or more likely, two or three confederacies, liberty will be destroyed by fighting one another and they will be unable to prevent themselves from being at the mercy of the European powers (since only by remaining united will the states be able to repeal any attempt by Europe to interfere in their part of America).
Obviously, the two takeaway quotes for me are "Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates;" and, "Those who sacrifice liberty for security are guaranteed neither." I think these two quotes, taken by themselves, make it clear that the Founding Fathers wanted liberty to be the primary concern of the state. Indeed, Lockean philosophy holds that when the state fails to protect our natural rights, (life, liberty and property) then the state loses its legitimacy.
ReplyDeleteOn the other hand, the Founders also seemed to have recognized that there would be times when liberty might compromise the ability of the state to survive. For example, Article I, Section 9 clearly grants the federal government the right to suspend habeas corpus in the event that the nation found itself in danger of “rebellion or invasion.” Now, as our borders spread southward and westward and we found ourselves more geographically isolated from our enemies, the threat of invasion is negligible, particularly since the end of the Cold War (and there are some who would argue that invasion was never really a tangible threat).
However, to take the Living Originalist approach of Balkin, is it possible to argue that, in view of the underlying principle in giving the government the authority to revoke such a crucial right to defense of liberty as habeas, the Founders recognized the need for a nation to be able to set aside, temporarily, liberty for security. If this is indeed the case, is it possible to argue that laws like the Patriot Act are in fact not in conflict with the original intent of the Founders? And if so, then why the unambiguity of Hamilton and Franklin?
Or, is it possible that this is another constitutional evil, certainly lesser than slavery, meant as a compromise between those who wanted a stronger government (one capable of threatening liberty) and a weaker (one incapable of it)? Certainly one must be wary of Ackerman’s claim that the over-growing executive might use emergency powers to increase its own strength at the expense of liberty (the emerging legitimacy of government by emergency). It is not inconceivable that the Founders would have understood this risk, having lived through the tyranny of monarchy. So, I do believe that the words of Franklin and Hamilton should still carry weight for us today, and as Ackerman reminds us in Decline and Fall, the real greatest threat to liberty comes from within, not from without.