Consent is no longer understood as something others undertake on our behalf, but without comprehending the old view, much about the past is unintelligible.
There’s a curious shift in the discussion of faction between the start of it in Federalist 9 (penned by Hamilton) and the completion of it in Federalist 10 (written by Madison). The awkwardness of this change leads me to wonder whether Madison drafted the argument of Federalist 10 to justify a congressional veto over state legislation, a provision he advocated but which the Constitutional Convention refused to adopt. Despite his proposal’s failure, the material on factions was too good for him not to use (according to my speculation), so he shoehorned it into Publius’s discussion even though it did not fit as neatly as it would have had his congressional veto been adopted.
Papers 9 and 10 lay out a single, extended discussion, despite being penned separately by Hamilton and Madison. The start of Federalist 9 lays out the topic for both papers, “A firm Union will be of the utmost moment to the peace and liberty of the States as a barrier against domestic faction and insurrection.”
Note the direction of the protection here: The national government can protect states from the effects of state-level faction and insurrection.
The national obligation to the states regarding insurrection is clear enough in the text of the Constitution. Article 4, section 4 confers explicit power on the national government to “protect each [state] . . . against domestic violence” on application of the state’s legislature or executive (when the legislature cannot act).
There is no similar catch-all provision for national intervention in a single state in the case of domestic faction.
There are selective anti-faction provisions aimed at the states in the original Constitution. These pertain almost entirely to factious interstate rivalries rather than to the intrastate factions that would seem to be the topic of the thesis statement in the first line of Federalist 9. Even the contracts clause of article 1, section 10, as well as that clause’s limitations on state-level money, and the provision for uniform bankruptcy law in article 1, section 8, implicated, at the time, not only intrastate abuses, but intrastate abuses that affected the national and international reputation of the other states and the national government.
The opening line of Federalist 9 then begs the question, what power is it exactly in the proposed Constitution the national government would hold to protects states generally from abuses of intrastate faction?
Madison starts Federalist 10 with a similar appeal. “Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.” While Madison does not explicitly reference state governments in his indictment, he does so clearly, albeit implicitly, in his very first paragraph.
But while Madison begins Federalist 10 discussing how union would “break and control the violence of faction,” the essay concludes, not with a discussion of breaking and controlling faction, but how faction will not spread from one state to another: “The influence of factious leaders may kindle a flame within their particular states but will be unable to spread a general conflagration through the other states.”
That’s true enough, but note how Madison has changed the argument. That state-level faction fails to spread from one state to another is a different argument than the claim that union will “break and control” faction. A faction rising in one state can no more transmit its policies to a politically separated state than it can to another state in which it is joined together in a federal union. Indeed, disunion answers this need as much as union does.
Perhaps Madison means something like this: By nationalizing decision-making, the proposed Constitution takes policies subject to factious state-level determination and makes them subject to national-level determination, a level less amenable to factious control. Therefore union “breaks and controls” state-level factions this way.
Trying to shore up Madison’s argument this way, however, proves too much. If national-level decision making is to be preferred overall because it better resists faction than state-level policymaking, then the implication would be that the Constitution should move all policy making for superior, national-level determination. The Constitution should then have propose a consolidated, national-level government, rather than a federated government. Indeed, earlier in Federalist 10 Madison suggests tax policy is the policy area most liable for factious decision making, yet states are left almost in complete control of tax policy (notwithstanding the limitations on state taxation of interstate trade in article 1, section 10).
The broad line of argument within Federalist 10, let alone across Federalist 9 and Federalist 10, fails to cohere as applied to the then-proposed Constitution.
The awkwardness of the given argument, however, resolves itself, however, if we take the same argument and apply it to a congressional veto on state legislation. In that case, a less-factious national legislature would selectively intervene at the state level to “break and control” factious legislation adopted by a state and applied only to the citizens of that single state. This coheres with the federal nature of the government – most legislation would remain subject to state-level determination. The national legislature would constitute only an added check on state legislative injustice. Applied in this fashion, Madison’s argument would not implicitly constitute an argument for national-level consolidation. It also links back to the thesis statement in Federalist 9, that a “firm” national government would form a barrier to “domestic faction.”
To be sure, this is mere speculation, a private theory. The only evidence is one from parsimony. But the overall arc of the argument in Federalist 10 seems to work better for Madison’s congressional veto than it does as applied to the then-proposed Constitution.