Enforcing constitutions is quite a tricky business. Some sort of judicial apparatus is usually required, combined with judicial independence and respect for the courts. The difficulty of enforcing a constitution is illustrated by the fact that many countries that have copied the US Constitution in large measure have at one point or another ended up with dictatorships.

In the US, the reason I don’t worry much about our lapsing into dictatorship is because, as I understand it, our soldiers are taught that their primary duty is to uphold the constitution and only at a lower level than that to obey an particular commander in chief. To put a point to it, in the US, in a very thorny disputed election, I think that whoever is declared by the Supreme Court to be the President of the United States, would be followed by US soldiers. And unlike some, I believe that the members of the US Supreme Court do have a loyalty to the law, where the law is reasonably clear.

The ability of a judicial branch to enforce a constitution depends heavily on individual citizens and companies being subject to the laws of the nation. If only the subordinate governments (in the US, preeminently the States) were subject de jure to the constitution, it is hard to see how the judicial branch could enforce that. It has no army! Much better if a large share of constitutional issues can be handled by court actions vis a vis individual citizens and companies.

Of course, some constitutional violations are so large that an army or the equivalent of an army is necessary to enforce them. In the the first half of the Federalist Papers #21, Alexander Hamilton argues that the federal government should, in particular, be the guarantor of state constitutions. But it had no such authority under the Articles of Confederation. Alexander Hamilton argues also that some realistic enforcement provisions are needed to ensure performance of the duties states have officially taken on in relation to the federal government.

Below is the text for the first half of the Federalist Papers #21.

FEDERALIST NO. 21

Other Defects of the Present Confederation

For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

HAVING in the three last numbers taken a summary review of the principal circumstances and events which have depicted the genius and fate of other confederate governments, I shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. To form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease.

The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the States, it must be by inference and construction, in the face of that part of the second article, by which it is declared, "that each State shall retain every power, jurisdiction, and right, not EXPRESSLY delegated to the United States in Congress assembled." There is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new Constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. If we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the United States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. It will appear, from the specimens which have been cited, that the American Confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world.

The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations.

The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws.

Without a guaranty the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the government. The tempestuous situation from which Massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. Who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a Caesar or by a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York?

The inordinate pride of State importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. A scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. It could be no impediment to reforms of the State constitution by a majority of the people in a legal and peaceable mode. This right would remain undiminished. The guaranty could only operate against changes to be effected by violence. Towards the preventions of calamities of this kind, too many checks cannot be provided. The peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. Where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men. A guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community.

Here are links to my other posts on The Federalist Papers so far:

• The Federalist Papers #1: Alexander Hamilton's Plea for Reasoned Debate

• The Federalist Papers #2 A: John Jay on the Idea of America

• The Federalist Papers #2 B: You Trusted the Continental Congress; Trust the Constitutional Convention

• The Federalist Papers #3: United, the 13 States are Less Likely to Stumble into War

• The Federalist Papers #4 A: The States Must Be Prepared to Defend against Aggression by Other Nations

• The Federalist Papers #4 B: National Defense Will Be Stronger if the States are United

• The Federalist Papers #5: Unless United, the States Will Be at Each Others' Throats

• The Federalist Papers #6 A: Alexander Hamilton on the Many Human Motives for War

• The Federalist Papers #6 B: Commercial Republics Also Start Wars with Their Neighbors—Alexander Hamilton

• The Federalist Papers #7 A: Divided, the States Would Fall into Territorial Disputes Likely to Lead to War Between the States—Alexander Hamilton

• The Federalist Papers #7 B: Without Union, Economic Disagreements Would Drive the States to Conflict with One Another—Alexander Hamilton

• The Federalist Papers #8: Without Union, the States Would Either Be Subject to Devastating Wars with Each Other or Would Have Liberty Endangered by their Own Standing Armies—Alexander Hamilton

• The Federalist Papers #9 A: There Has Been Technological Progress in Practical Principles of Republican Government—Alexander Hamilton

• The Federalist Papers #9 B: A Large Confederation May Be More Politically Stable Than a Small Nation—Alexander Hamilton Cites Montesquieu

• The Federalist Papers #10 A: Conflicts Arising from Differences of Opinion Are an Inevitable Accompaniment of Liberty—James Madison

• The Federalist Papers #10 B: The Larger the Republic, the Easier It is to Find Thoughtful Legislators and the Harder It is to Put Together a Majority to do Unjust Things—James Madison

• The Federalist Papers #11 A: United, the States Can Get a Better Trade Deal—Alexander Hamilton

• The Federalist Papers #11 B: Union Will Make Possible a Strong Navy, Allowing America to Chart Its Own Destiny—Alexander Hamilton

• The Federalist Papers #12: Union Makes it Much Easier to Get Tariff Revenue—Alexander Hamilton

• The Federalist Papers #13: Alexander Hamilton on Increasing Returns to Scale in National Government

• The Federalist Papers #14: A Republic Can Be Geographically Large—James Madison

• The Federalist Papers #15: A Government, to be Worthy of the Name, Must Govern Its Citizens, Not Just Its Subordinate Jurisdictions—Alexander Hamilton

• The Federalist Papers #16: Authority of the Federal Government Directly over Individuals Means States Can Only Thwart the Federal Government by Active and Obvious Resistance—Alexander Hamilton

• The Federalist Papers #17: Three Levels of Federal Power

• The Federalist Papers #18: Alexander Hamilton and James Madison Point to the Weakness of Confederations of Cities in Ancient Greece to Argue for a Strong Federal Government

• The Federalist Papers #19: The Weakness of the German Empire, Poland and Switzerland up to the 18th Century is Evidence for the Weakness of Confederations—Alexander Hamilton and James Madison

• The Federalist Papers #20: The Weakness of the United Netherlands up to the 18th Century is Evidence for the Weakness of Confederations—Alexander Hamilton and James Madison