Year XLIV, 2002, Number 2, Page 143
What should be the ultimate aim of a constituent convention? In 1780, well before the convening of the Philadelphia Convention, Hamilton, writing to lames Duane, then member of Congress for New York State, provided a clear answer to this question, setting out what he considered to be the defects of the confederation. Here, we reproduce most significant passages of this letter. The purpose of the Convention, which Hamilton hoped would be convened in the autumn of that same year, was to attribute the continental Congress with the power to decide in the last resort on all questions of vital importance to the Union, that is to say, with the power to transfer sovereignty from the former colonies to the United States. From that moment on, the creation of a continental sovereign power became the guiding star of Hamilton’s political action. Several years later, worried at the prospect of a reform that would leave the federation with a weak executive power at continental level, he was quick to propose an elective monarchy at its head, seeing this as a means of guaranteeing the exclusiveness and effectiveness of the government. His loyalty to the Union, which surpassed his loyalty to his own state, New York, explains why Hamilton was not, and is still not, regarded, within the USA, as the true voice of the American population’s federalist aspirations, and why this role is more usually attributed to Jefferson or Madison. It was, however, this loyalty that led Hamilton to play a fundamental part in founding a sovereign federal state covering an area (that of the thirteen former colonies) occupied by a number of different subjects, all claiming to be sovereign.
The War of Independence from the British Crown had taught Hamilton that in the absence of a continental state, sooner or later “some of the States will be powerful empires, and we are so remote from other nations that we shall have all the leisure and opportunity we can wish to cut each others throats”. This is why he approved and defended the new Constitution, once he realised that it represented the means through which it would be possible to impose, on the former colonies, a new principle of government, based on “enlargement of the orbit within which such systems (of government) are to revolve either in respect, to the dimensions of a single State, or to the consolidation of several smaller States into one great confederacy. The proposed constitution, so far implying an abolition of the State Governments, makes them constituent parts of the national sovereignty by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a Federal Government.” In theory, there was nothing to prevent other states, and Europe first and foremost, from following the American example. This is, indeed, what Benjamin Franklin called for in a letter to several European friends, written just after the close of the Philadelphia Convention: “I send you the proposed new federal Constitution for these States. I was engaged four months of the last summer in the Convention that formed it. If it succeeds, I do not see why you might not in Europe carry the project of good Henry the Fourth into execution, by forming a Federal Union and one grand republic of all its different States and Kingdoms, by means of a like Convention; for we had many interests to reconcile.” But the happy outcome of this federalist battle in America was not destined to be repeated elsewhere.
As we know, not only did the Europeans fail to follow the American example, but also it took over a century and a half and two world wars before some countries, to which American intervention had brought peace, were ready to start a process of unification of the European continent. But it has been such a slowly evolving and uncertain process that, over half a century on, we have still not arrived at a European federation.
The defects of the American federation pointed out by Hamilton are the very defects presented by today’s European Union. The weak power exercised by the American Congress is comparable to the equally weak power of the European institutions. Without the transfer of sovereignty from the states to the Union, no effective and powerful form of government could ever have been founded in America. Without a transfer of sovereignty from the states to the Union, it will not be possible to remove the main obstacle to the formation of a European federation. Considered from this perspective, Hamilton’s letter emerges not only as further proof of the political farsightedness of the main author of the articles of The Federalist, but also as a warning to all those Europeans, be they heads of state and government or mere citizens, who continue to bemoan Europe’s weakness, while still resisting the idea of renouncing their national sovereignty.
The letter to James Duane contains a number of foretastes of the arguments that Hamilton was later to use to support ratifying the Philadelphia Constitution and strengthening the federal government. It provides a reminder of Hamilton’s main concern: that an analysis of the facts should always be followed by an exploration of the possible remedies. Indeed, his letter opens with a peremptory reference to “The fundamental defect”, while the second part of it is given over to “remedies”.
Hamilton was well aware of the influence and prestige enjoyed by Duane, one of the first supporters of the war for independence from the British Crown. He was often to call upon him for assistance in subsequent years. Duane, like most of his fellow-countrymen and colleagues in Congress, were aware of the limitations and defects of the Union, but did not know how to overcome them. Hamilton lost no time in bringing him face to face with the fundamental question, in a manner that was respectful, but also decisive, urging his well-placed friend “to remedy public disorders” and suggesting a procedure by which the States could be made to face the question of the relinquishment of their sovereignty. It was a procedure destined to bear fruit only after a further eight years of political struggle. It hardly needs to be added that Hamilton’s use of the word confederation, to describe both the institutional system that needed changing and the new one, leaves room for no doubt as to the nature of the state — entirely federal and sovereign — that he had in mind when he listed the sovereign powers that should be attributed to Congress. Powers that, thanks to Hamilton’s struggle, are still fully exercised today by the United States of America’s federal government system.
THE DEFECTS OF OUR PRESENT SYSTEM
Agreeably to your request and my promise I sit down to give you my ideas of the defects of our present system, and the changes necessary to save us from ruin. They may perhaps be the reveries of a projector rather than the sober views of a politician. You will judge of them, and make what use you please of them.
The fundamental defect is a want of power in Congress. It is hardly worth while to show in what this consists, as it seems to be universally acknowleged, or to point out how it has happened, as the only question is how to remedy it. It may however be said that it has originated from three causes — an excess of the spirit of liberty which has made the particular states show a jealousy of all power not in their own hands; and this jealousy has led them to exercise a right of judging in the last resort of the measures recommended by Congress, and of acting according to their own opinions of their propriety or necessity, a diffidence in Congress of their own powers, by which they have been timid and indecisive in their resolutions, constantly making concessions to the states, till they have scarcely left themselves the shadow of power; a want of sufficient means at their disposal to answer the public exigencies and of vigor to draw forth those means; which have occasioned them to depend on the states individually to fulfil their engagements with the army, and the consequence of which has been to ruin their influence and credit with the army, to establish its dependence on each state separately rather than on them, that is rather than on the whole collectively.
It may be pleaded, that Congress had never any definitive powers granted them and of course could exercise none — could do nothing more than recommend. The manner in which Congress was appointed would warrant, and the public good required, that they should have considered themselves as vested with full power to preserve the republic from harm. They have done many of the highest acts of sovereignty, which were always chearfully submitted to — the declaration of independence, the declaration of war, the levying an army, creating a navy, emitting money, making alliances with foreign powers, appointing a dictator &c. &c. — all these implications of a complete sovereignty were never disputed, and ought to have been a standard for the whole conduct of Administration. Undefined powers are discretionary powers, limited only by the object for which they were given — in the present case, the independence and freedom of America. The confederation made no difference; for as it has not been generally adopted, it had no operation. But from what I recollect of it, Congress have even descended from the authority which the spirit of that act gives them, while the particular states have no further attended to it than as it suited their pretensions and convenience. It would take too much time to enter into particular instances, each of which separately might appear inconsiderable; but united are of serious import. I only mean to remark, not to censure.
But the confederation itself is defective and requires to be altered; it is neither fit for war, nor peace. The idea of an uncontrolable sovereignty in each state, over its internal police, will defeat the other powers given to Congress, and make our union feeble and precarious. There are instances without number, where acts necessary for the general good, and which rise out of the powers given to Congress must interfere with the internal police of the states, and there are as many instances in which the particular states by arrangements of internal police can effectually though indirectly counteract the arrangements of Congress. You have already had examples of this for which I refer you to your own memory.
The confederation gives the states individually too much influence in the affairs of the army; they should have nothing to do with it. The entire formation and disposal of our military forces ought to belong to Congress. It is an essential cement of the union; and it ought to be the policy of Congress to destroy all ideas of state attachments in the army and make it look up wholly to them. For this purpose all appointments promotions and provisions whatsoever ought to be made by them. It may be apprehended that this may be dangerous to liberty. But nothing appears more evident to me, than that we run much greater risk of having a weak and disunited federal government, than one which will be able to usurp upon the rights of the people. Already some of the lines of the army would obey their states in opposition to Congress notwithstanding the pains we have taken to preserve the unity of the army — if any thing would hinder this it would be the personal influence of the General, a melancholy and mortifying consideration.
The forms of our state constitutions must always give them great weight in our affairs and will make it too difficult to bend them to the persuit of a common interest, too easy to oppose whatever they do not like and to form partial combinations subversive of the general one. There is a wide difference between our situation and that of an empire under one simple form of government, distributed into counties provinces or districts, which have no legislatures but merely magistratical bodies to execute the laws of a common sovereign. Here the danger is that the sovereign will have too much power to oppress the parts of which it is composed. In our case, that of an empire composed of confederated states each with a government completely organised within itself, having all the means to draw its subjects to a close dependence on itself — the danger is directly the reverse. It is that the common sovereign will not have power sufficient to unite the different members together, and direct the common forces to the interest and happiness of the whole.
Our own experience should satisfy us. We have felt the difficulty of drawing out the resources of the country and inducing the states to combine in equal exertions for the common cause. The ill success of our last attempt is striking. Some have done a great deal, others little or scarcely any thing. The disputes about boundaries &c. testify how flattering a prospect we have of future tranquillity, if we do not frame in time a confederacy capable of deciding the differences and compelling the obedience of the respective members.
The confederation too gives the power of the purse too intirely to the state legislatures. It should provide perpetual funds in the disposal of Congress — by a land tax, poll tax, or the like. All imposts upon commerce ought to be laid by Congress and appropriated to their use, for without certain revenues, a government can have no power; that power, which holds the purse strings absolutely, must rule. This seems to be a medium, which without making Congress altogether independent will tend to give reality to its authority.
These are the principal defects in the present system that now occur to me. There are many inferior ones in the organization of particular departments and many errors of administration which might be pointed out; but the task would be troublesome and tedious, and if we had once remedied those I have mentioned the others would not be attended with much difficulty.
I shall now propose the remedies, which appear to me applicable to our circumstances, and necessary to extricate our affairs from their present deplorable situation.
The first step must be to give Congress powers competent to the public exigencies. This may happen in two ways, one by resuming and exercising the discretionary powers I suppose to have been originally vested in them for the safety of the states and resting their conduct on the candor of their country men and the necessity of the conjuncture: the other by calling immediately a convention of all the states with full authority to conclude finally upon a general confederation, stating to them beforehand explicitly the evils arising from a want of power in Congress, and the impossibility of supporting the contest on its present footing, that the delegates may come possessed of proper sentiments as well as proper authority to give to the meeting. Their commission should include a right of vesting Congress with the whole or a proportion of the unoccupied lands, to be employed for the purpose of raising a revenue, reserving the jurisdiction to the states by whom they are granted.
The first plan, I expect will be thought too bold an expedient by the generality of Congress; and indeed their practice hitherto has so rivetted the opinion of their want of power, that the success of this experiment may very well be doubted.
I see no objection to the other mode, that has any weight in competition with the reasons for it. The Convention should assemble the 1st of November next, the sooner, the better; our disorders are too violent to admit of a common or lingering remedy. The reasons for which I require them to be vested with plenipotentiary authority are that the business may suffer no delay in the execution, and may in reality come to effect. A convention may agree upon a confederation; the states individually hardly ever will. We must have one at all events, and a vigorous one if we mean to succeed in the contest and be happy hereafter. As I said before, to engage the states to comply with this mode, Congress ought to confess to them plainly and unanimously the impracticability of supporting our affairs on the present footing and without a solid coercive union. I ask that the Convention should have a power of vesting the whole or a part of the unoccupied land in Congress, because it is necessary that body should have some property as a fund for the arrangements of finance; and I know of no other kind that can be given them.
The confederation in my opinion should give Congress complete sovereignty; except as to that part of internal police, which relates to the rights of property and life among individuals and to raising money by internal taxes. It is necessary, that every thing, belonging to this, should be regulated by the state legislatures. Congress should have complete sovereignty in all that relates to war, peace, trade, finance, and to the management of foreign affairs, the right of declaring war of raising armies, officering, paying them, directing their motions in every respect, of equipping fleets and doing the same with them, of building fortifications arsenals magazines &c. &c., of making peace on such conditions as they think proper, of regulating trade, determining with what countries it shall be carried on, granting indulgencies laying prohibitions on all the articles of export or import, imposing duties granting bounties & premiums for raising exporting importing and applying to their own use the product of these duties, only giving credit to the states on whom they are raised in the general account of revenues and expences, instituting Admiralty courts &c., of coining money, establishing banks on such terms, and with such privileges as they think proper, appropriating funds and doing whatever else relates to the operations of finance. […]
You will perceive My Dear Sir this letter is hastily written and with a confidential freedom, not as to a member of Congress, whose feelings may be sore at the prevailing clamours; but as to a friend who is in a situation to remedy public disorders, who wishes for nothing so much as truth, and who is desirous of information, even from those less capable of judging than himself. I have not even time to correct and copy and only enough to add that I am very truly and affectionately Alexander Hamilton.
(Prefaced and edited by Franco Spoltore)
 Alexander Hamilton to lames Duane, 3 Sept. 1780, in Hamilton Writings, New York, The Library of America, 2001, p. 70.
 Ibidem, p. 72-73.
 Alexander Hamilton, The Federalist N. 9.
 Catherine Drinker Bowen, Miracle at Philadelphia, Boston, Back Bay Books, 1986, p. 281.