FEDERALIST 41-44: Powers Granted to the Federal Government Federalist 41: Constitutional Powers Provide Security against Foreign Danger
THE CONSTITUTION MAY BE CONSIDERED under two general points of view. The first relates to the sum or quantity of power which it vests in the Federal government, including the restraints imposed on the States. The second relates to the particular structure of the government, and the distribution of this power among its several branches.
Under the first view of the subject – the sum of power vested in the Federal government – two important questions arise:
1. Whether any part of the powers transferred to the general government are unnecessary or improper?
2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States?
The Aggregate Power of Federal Government Does Not Exceed What Ought to Have Been Vested in It
The authors of arguments against the extensive powers granted to the Federal government very little considered how far these powers were the necessary means of attaining a necessary end. The authors instead chose to dwell on the inconveniences which are unavoidably blended with all political advantages, and on the potential abuses which are incident to every power or trust of which a beneficial use can be made.
This method of handling the subject cannot affect the good sense of the People of America. The method may display the subtlety of the writer, open a boundless field for rhetoric and declamation, inflame the passions of the unthinking, or confirm the prejudices of the misthinking, but cool and candid individuals will immediately reflect that the purest of human blessings have a portion of alloy in them, and that the choice must always be made – if not of the lesser evil – at least of the greater good, which need not be perfect.
In every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. Thus in all cases where power is to be conferred, the point first to be decided is whether such a power is necessary to the public good, as the next point will be – in case of an affirmative decision – to guard as effectually as possible against a perversion of the power to the public detriment.
To form a correct judgment on this subject, it is proper to review the several powers conferred on the Federal government. This is most conveniently done by reducing these powers into different classes as they relate to the different objects:
1. Security against foreign danger;
2. Regulation of the intercourse with foreign nations;
3. Maintenance of harmony and proper intercourse among the States;
4. Certain miscellaneous objects of general utility;
5. Restraint of the States from certain injurious acts;
6. Provisions for giving due efficacy to all these powers.
These powers are discussed in this paper and Federalist 42 through Federalist 46.
Security Against Foreign Danger
The first class of powers are those of declaring war and granting letters of marque, of providing armies and fleets, of regulating and calling forth the militia, and of levying and borrowing money.
Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the United States. The powers requisite for attaining it must be effectually confided to the Federal councils.
Is the power of declaring war necessary? No one will answer this question in the negative. Therefore it would be superfluous to enter into a proof of the affirmative. The Articles of Confederation established this power in the most ample form.
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The first class of powers are those of declaring war and granting letters of marque, of providing armies and fleets, of regulating and calling forth the militia, and of levying and borrowing money. Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the United States. The powers requisite for attaining it must be effectually confided to the Federal councils.
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Is the power of raising armies and equipping fleets necessary? This power arises from the power to declare war, which necessarily includes the power of self-defense. Further, the Convention believed it necessary to give the Federal government an indefinite power of raising troops as well as providing fleets, and to maintain both in peace as well as in war. The need for these powers was discussed at length in Federalist 24 through Federalist 28.
Peaceful Nations as well as Strong Prepare for War
The force necessary for defense cannot be limited by those who lack the power to limit the force of offense. The Constitution might prudently chain the discretion of its own government and set bounds to the exertions for its own safety only if it could also chain the ambition or set bounds to the exertions of all other nations, which it cannot. How could a readiness for war in time of peace be safely prohibited unless we could prohibit the preparations and establishments of every hostile nation? Our means of security can be regulated only by the means and danger of attack. Security will be ever determined by these rules, and by no others.
It is in vain to impose constitutional barriers to the impulse of self-preservation. Indeed, it is worse than vain because it would plant in the Constitution itself a need to usurp power for self-defense. Every usurpation would be a precedent leading to unnecessary and multiplied repetitions. If one nation constantly maintains a disciplined army – ready for the service of ambition or revenge – it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions.
The Example of Military Establishments in Europe
The fifteenth century was the unhappy epoch of military establishments in the time of peace. They were introduced by Charles VII of France. All of Europe followed or was forced to follow the example. Had other nations not followed the example, all of Europe would long ago have worn the chains of a universal monarch. The same event might follow if every nation except France disbanded its peace establishments.
The Example of Rome
The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations. Rome’s forces rendered her the mistress of the world. Not less true is that the liberties of Rome proved the final victim to her military triumphs. The liberties of Europe – so far as they ever existed – have been the price of her military establishments, with few exceptions. A standing force is therefore dangerous at the same time that it may be a necessary. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution.
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It is in vain to impose constitutional barriers to the impulse of self-preservation. Indeed, it is worse than vain because it would plant in the Constitution itself a need to usurp power for self-defense. Every usurpation would be a precedent leading to unnecessary and multiplied repetitions. If one nation constantly maintains a disciplined army – ready for the service of ambition or revenge – it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions.
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The Constitution Includes Precautions against the Ill Effects of Military Establishments
A wise nation will combine all of the foregoing considerations. It does not rashly preclude itself from any resource which may become essential to its safety. A wise nation will exert all its prudence in diminishing both the necessity and the danger of resorting to a resource that may be inauspicious to its liberties.
The clearest marks of this prudence are stamped on the Constitution. The union of States it cements and secures, destroys every pretext for a military establishment which could be dangerous. A united America with a handful of troops exhibits a more forbidding posture to foreign ambition than would a disunited America with a hundred thousand veterans ready for combat.
The want of the pretext for military establishments saved the liberties of one nation in Europe. Being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of Great Britain have never been able to cheat the public into an extensive peace establishment, whether by real or artificial dangers.
The distance of the United States from the powerful nations of the world gives us the same happy security. A dangerous establishment can never be necessary or plausible so long as we continue a united People. But it can never be forgotten that the People are indebted for this advantage by our union alone. The moment the union dissolved will be the date of a new order of things. The fears of the weaker States or the ambition of the stronger States (or confederacies) will set the same example in the New World as Charles VII did in the Old World. The example will be followed here from the same motives which produced universal imitation there. Instead of deriving from our situation the precious advantage Great Britain has derived from hers, the face of America will copy that of the continent of Europe. It will present liberty everywhere crushed between standing armies and perpetual taxes.
The fortunes of a disunited America will be even more disastrous than those of Europe. The sources of evil in Europe are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge.
In America, the miseries springing from her internal jealousies, contentions, and wars would form only a part of her lot. A plentiful addition of evils would have their source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of the earth bears to Europe. The picture of the consequences of disunion cannot be too highly colored or too often exhibited. The image ought ever to be in sight before the eyes of every person who loves peace, the nation, and liberty, in order to cherish a heartfelt attachment to the United States and set a due value on the means of preserving it.
A Steady But Circumscribed Source of Revenue Will Maintain the Military
Next to a union, the best possible precaution against danger from standing armies is the two-year limitation of the term for which revenue may be appropriated to their support. I will not repeat here the observations made in Federalist 24 and Federalist 26 which placed this subject in a just and satisfactory light.
But we saw advanced an argument drawn from the policy and practice of Great Britain. It was said the continuance of an army in that kingdom requires an annual vote of the legislature, while our Constitution has lengthened this period to two years. The argument was presented to the public is the form just stated, but is it a fair comparison? Its authors knew it was a fallacy because the British Constitution fixes no limit whatever to the discretion of the legislature, while the American limit ties down Congress to a two-year appropriation.
Had the argument from the British example been truly stated, it would have stood thus: The term for which supplies may be appropriated to the army establishment – though unlimited by the British Constitution – has in practice been limited by parliamentary discretion to a single year. In Great Britain, the House of Commons is elected for seven years. A great proportion of its members are elected by a small proportion of the People, and those electors are often corrupted by the representatives, and the representatives corrupted by the Crown. The representative body – the House of Commons of Great Britain – possesses a power to make appropriations to the army for an indefinite term, but it neither desires or dares to extend the term beyond a single year. Suspicion herself blushes to pretend the members of the House of Representatives of the United States – freely elected by the whole body of the People every two years – cannot safely be entrusted with the discretion over military appropriations, when it is expressly limited to the same short two-year period. A bad argument, case, or cause seldom fails to betray itself.
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Next to a union, the best possible precaution against danger from standing armies is the two-year limitation of the term for which revenue may be appropriated to their support.
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The Opponents of Standing Armies Exaggerated their Concerns to the Point of Drawing Attention to the Efficacy of the Power Attacked
Among all the blunders committed by the opponents of a military force, none is more striking than their attempt to enlist support from the prudent jealousy the People have of standing armies. The attempt awakened fully the public attention to that important subject. It led to investigations which terminated in a thorough and universal conviction that the Constitution has provided the most effectual guards against danger from that quarter.
Nothing short of a Constitution fully adequate to the national defense and the preservation of union will save America from of as many standing armies as states or confederacies that would exist if we were to divide. The progressive augmentation of these establishments also would render them burdensome to the properties and ominous to the liberties of the People. A military establishment that becomes necessary under the united and efficient government set forth in the Constitution will be tolerable to property owners and safe to the liberties of the People.
The Importance of the United States Navy
The palpable necessity of the power to provide and maintain a navy protected its inclusion in the Constitution, from the spirit of censure which has spared few other parts. Art. I, § 8, cl. 13. It must be numbered among the greatest blessings of the United States that her union will be the only source of her maritime strength. It will be a principal source of her security against danger from abroad. In this respect our situation bears another likeness to the insular advantage of Great Britain. The batteries most capable of repelling foreign enterprises on our safety are happily such as can never be turned against our liberties by a perfidious government.
The Benefits of a Federal Navy to the Atlantic Frontier
The inhabitants of the Atlantic frontier are deeply interested in this provision for naval protection. Hitherto their maritime towns and property have remained safe against the predatory spirit of licentious adventurers who could compel ransom from the terrors of a conflagration, or the exactions of daring and sudden invaders. But these instances of good fortune could not have been ascribed to the capacity of the then-existing government for the protection of those from whom it claimed allegiance, but to causes that are fugitive and fallacious.
The Benefits of a Federal Navy to the State of New York
Excepting perhaps Virginia and Maryland – which are peculiarly vulnerable on their eastern frontiers – no part of the United States ought to feel more anxiety on this subject than New York. Her seacoast is extensive. A very important district of the State is an island. The State itself is penetrated by a large navigable river for more than fifty leagues. The great emporium of its commerce and great reservoir of its wealth lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliance with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians.
Should a war be the result of a precarious situation of European affairs – and all the unruly passions attending it be let loose on the ocean – an escape from all the insults and depredations accompanying it will be truly miraculous.
Under the Confederation, those States more immediately exposed to these calamities had nothing to hope from what was the phantom of the general government. Even if a State’s resources were equal to fortifying itself against the danger, the objects protected would be almost consumed by the costs of protecting them.
Congressional power to maintain a navy adds to the power of regulating and calling forth the militia, and to the power of levying and borrowing money, which is the sinew of that which must be exerted in the national defense.
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Congressional power to maintain a navy adds to the power of regulating and calling forth the militia, and to the power of levying and borrowing money, which is the sinew of that which must be exerted in the national defense.
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Federal Taxes Cannot Be Limited to Duties on Imported Items
I will address one additional reflection to those who contend the power to tax ought to have been restrained to external taxation, that is, taxes on articles imported from other countries. It cannot be doubted this will always be a valuable source of revenue; that for a considerable time it must be a principal source; and that at this moment it is an essential one.
But we may form very mistaken ideas of this subject if our calculations do not call to mind that the extent of revenue drawn from foreign commerce will be variable. Revenue from duties will fluctuate, both in the extent and the kind of imports, since revenue will not correspond to increases in population, which usually is the general measure of public demand. At present agriculture is the sole field of labor, but importation of manufactures will increase as consumers multiply. As soon as domestic manufactures use the hands not needed by agriculture, imported manufactures will decrease as the numbers of people increase.
Farther in the future our imports may consist in large part of raw materials, which will be wrought into articles for exportation. Importation of raw materials ought to be encouraged through economic incentives, rather than loaded with discouraging duties. A system of government which is meant to endure ought to contemplate these revolutions and be able to accommodate itself to them.
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A bad argument, case, or cause seldom fails to betray itself.
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Opponents of the Constitution Purposefully Ignored the Limits It Places on Taxation
Some writers (who conceded the necessity of the power to tax) launched a very fierce attack against the Constitution by taking its language out of context. It was urged and echoed that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounted to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.
No stronger proof of the distress under which these writers labored for objections than their stooping to such a misconstruction. The objection might have had some color if no other enumeration of the powers of the Congress been found in the Constitution.
But what color can the objection have when a specification of the objects alluded to by these general terms immediately follows, separated only by a semicolon? Different parts of the same instrument ought to give meaning to every part which will bear it. Shall one part of a sentence be excluded altogether from a share in the meaning of the rest of the sentence? Shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers have been inserted if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common at law than first to use a general phrase, and then to explain and qualify it by a recital of particulars.
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No stronger proof of the distress under which these writers labored for objections than their stooping to such a misconstruction. The objection might have had some color if no other enumeration of the powers of the Congress been found in the Constitution. But what color can the objection have when a specification of the objects alluded to by these general terms immediately follows, separated only by a semicolon?
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The idea of an enumeration of particulars which neither explains nor qualifies the general meaning has no other effect than to confound and mislead. It is an absurdity concocted by the authors of the objection. It is even more extraordinary because it is based on language the Convention copied from the Articles of Confederation. The third article thereof described the objects of the union of the States as “their common defence, the security of their Liberties, and their mutual and general welfare.” The eighth article is the same: “All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury . . . .” Similar language again occurs in the ninth article. If these articles were construed by the rules the objectors would apply to the Constitution, the Congress would have had a power to legislate in all cases whatsoever.
What would have been thought of that Congress if had attached itself to these general expressions and exercised an unlimited power of providing for the common defense and general welfare, while disregarding the specifications limiting their import? I ask whether the objectors would have employed the same reasoning in justification of that Congress as they now use against the Convention. How difficult it is for error to escape its own condemnation!
Madisonoriginal Federalist 41