The Fifth Class of Powers: Prohibition of Certain State Activities
A FIFTH CLASS OF PROVISIONS in favor of the Federal authority consists of the following restrictions on the authority of the several States: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” Art. I, § 10, cl 1.
Prohibition of Any State Entering into Any Treaty, Alliance or Confederation
The first clause – the prohibition against any treaty, alliance or confederation – needs no explanation.
Prohibition of Any State Granting Letters of Marque
The prohibition of letters of marque was included in the Articles of Confederation, and is extended in the Constitution.
According to the old system, letters of marque could be granted by a State after a declaration of war. Under the new system, these licenses must be obtained from the government of the United States both before war and after its declaration.
This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers.
It also is fully justified by the liability of the nation for all those whose conduct the nation itself will bear responsibility.
Prohibition of States Coining Money, and Issuing Bills of Credit or Paper Money
The Constitution takes the right of coining money from the States.
It was formerly left in their hands by the Confederation – as a concurrent right with that of Congress – with an agreed exclusive right of Congress to regulate the alloy and value.
This new provision is an improvement on the old.
The only effect of a right of coinage in States has been multiplication of expensive mints with diversified forms and weights of the circulating pieces.
Diversification of forms and weights of circulating pieces defeats one of the purposes why the power was originally submitted to the Federal government.
So long as the authority to regulate the alloy and value of coins tends to prevent an inconsistent remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the Federal government.
The Constitution also prohibits States from emitting bills of credit.
Since the peace, America’s losses from the pestilent effects of paper money have constituted an enormous debt against the States chargeable with these imprudent measures.
It undermines the necessary confidence between human beings and their confidence in the public councils.
It also undermines the industry and morals of the People, and even the character of republican government.
The States will never satisfy these debts, for they are based on no more than an accumulation of guilt.
The debt holders must expiate them by a voluntary sacrifice on the altar of justice, which expiation must include the power which has been the instrument of it.
Just as we must deny to States the power to regulate coin, we must deny to them the power to issue paper money in place of coin.
If every State had a right to regulate the value of its coin, there would be as many different currencies as States.
Intercourse would be impeded, and retrospective alterations in value would be made, leading to injuries among the citizens of the issuing States and the kindling of animosities among the States themselves.
Foreign powers also might suffer from any debasement, and hence the United States would be discredited and embroiled by the indiscretion of a single member.
These mischiefs are as incident to a power in the States to coin gold or silver as a power to emit paper money.
The power to make any thing but gold and silver a tender in payment of debts is withdrawn from the States on the same principle with that of issuing a paper currency.
Prohibition of Bills of Attainder, Ex Post Facto Laws, and Laws Impairing the Obligation of Contracts
Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts are contrary to the first principles of the social compact and to every principle of sound legislation.
The declarations prefixed to some State constitutions expressly prohibit bills of attainder and ex post facto laws.
The spirit and scope of the other constitutions implicitly prohibit them.
Moreover, our own experience has taught us we must erect additional fences against these dangers.
The Convention very properly added this constitutional bulwark in favor of personal security and private rights.
The People of America are weary with fluctuating policies emanating from public councils.
The People regret and are indignant with sudden changes and legislative interferences – particularly in those cases affecting personal rights – where they become mere jobs in the hands of enterprising and influential speculators, who are but snares to the more industrious (though less informed) members of the community.
The People have also seen that a single legislative interference can be but the first link of a long chain of repetitions, with every subsequent interference being naturally produced by the effects of the preceding.
From this they very rightly infer that thorough reform is needed to banish speculations on public measures, and to inspire the general prudence and industry which will give a regular course to the business of society.
Prohibition of Titles of Nobility
The prohibition with respect to titles of nobility, copied from the Articles of Confederation, needs no comment.
Prohibition of State Duties on Imports and Exports
The Constitution provides: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.” Art. I, § 10, cl. 2.
The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the Federal councils.
Therefore, it is needless to remark further on this head, other than to note the manner in which the restraint is qualified seems well calculated at once both to secure to the States a reasonable discretion in providing for the convenience of their imports and exports, and to secure to the United States a reasonable check against an abuse of this discretion. (The remaining particulars of this clause fall are either so obvious to reason or have been so fully developed that they may be passed over without remark.)
The Sixth Class of Powers Granted to the Federal Government
The sixth and last class of powers granted to the Federal government consists of the several powers and provisions by which efficacy is given to all the rest.
The Necessary and Proper Clause Is Unassailable
Of these the first is the “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
Few parts of the Constitution were assailed with more intemperance than this.
Yet no part appears more completely invulnerable upon a fair investigation.
Without the substance of this power, the whole Constitution would be a dead letter.
Those who object to the article as a part of the Constitution can only mean the form of the provision is improper.
The Four Alternatives to the Necessary and Proper Clause
Was there a better solution?
The Constitutional Convention considered four alternatives.
First, the Convention could have copied the second article of the existing Confederation – which would have prohibited the exercise of any power not expressly delegated.
Second, the Convention might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper.”
A third option might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition.
And finally, the Convention might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference.
(1) The Possibility of Prohibiting the Exercise of Any Power Not Expressly Delegated
Had the Convention adopted the first method – prohibiting the exercise of any power not expressly delegated – the Congress would be continually exposed to the alternative of construing the term “expressly” with so much rigor as to disarm the government of all real authority, or with so much latitude as to destroy altogether the force of the restriction.
As with the experience under the Articles of Confederation, none of the important powers delegated to Congress could have been executed by that body without resorting more or less to the doctrine of construction or implication.
Since the powers delegated under the new system are more extensive, the government administering it would find itself still more distressed with the alternatives of betraying the public interest by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but at the same time not expressly granted.
(2) The Possibility of Enumerating Necessary and Proper Powers
Had the Convention chosen the second alternative – a positive enumeration of the powers necessary and proper for carrying their other powers into effect – the attempt would have involved a complete digest of laws on every subject to which the Constitution relates, with accommodation not only to the existing state of things, but to all the possible changes futurity may produce.
With every new application of a general power, the particular powers – the means of attaining the object of the general power – would necessarily vary depending on the object, and also vary even when the object remains the same.
(3) The Possibility of Excepting Certain Powers from Those which Are Necessary and Proper
The third option would have been a negative specification of the powers excepted from the general authority to make laws necessary and proper.
Of course, every deficiency in the list of excepted powers would be taken as equivalent to a positive grant of authority to the Congress.
To avoid this consequence, the Convention could have attempted a partial enumeration of exceptions, and described the residue by the general terms “not necessary or proper.”
Such a partial list naturally would be composed of only the least necessary or proper powers.
As a result, the residuum would be less forcibly excepted than if no partial enumeration had been made at all.
(4) The Possibility of Remaining Silent
Finally, had the Constitution been silent on this head, by unavoidable implication all the particular powers requisite to executing the general powers would rest with the Federal government.
No axiom is more clearly established in law or reason that wherever a general power to do a thing is given, every particular power necessary for doing it is included.
To put it more succinctly: wherever the end is required, the means are authorized.
Had the Convention pursued this last method, every objection now urged against the proposed Constitution would remain fully plausible.
In times of crisis, these objections would offer a pretext to those who oppose the essential powers of the United States.
The Remedy for Federal Use of Unauthorized Powers Ultimately Rests with the People
One might reasonably ask what consequence would attend if Congress were exercise powers not warranted the true meaning of this clause.
The answer would be the same as if the Congress should misconstrue or enlarge any other power vested in it, as if a State legislature should violate its constitutional authority, and as if any legislative body were to violate a general power that had been reduced to particulars.
The sixth and last class of powers granted to the Federal government consists of the several powers and provisions by which efficacy is given to all the rest. Of these the first is the “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Few parts of the Constitution were assailed with more intemperance than this. Yet not part appears more completely invulnerable upon a fair investigation. Without the substance of this power, the whole Constitution would be a dead letter.
In the first instance, the success of the usurpation will depend on the executive and judicial departments, which are to expound and give effect to legislative acts.
In the last resort a remedy lies with the People, who can annul the acts of the usurpers by the election of more faithful representatives.
In truth, this ultimate redress is more effective against unconstitutional acts of the Federal government than would a similar act by a State legislature.
Every such act of the Federal government will be an invasion of the rights of the States, whose officials will be ever ready to mark the innovation, sound the alarm to the People, and to exert their local influence in replacing their Federal representatives.
By comparison, there is no intermediate body between the People and a State legislature, so constitutional violations are more likely to remain unnoticed and unredressed.
In the last resort a remedy lies with the People, who can annul the acts of the usurpers by the election of more faithful representatives.
The Supremacy Clause Gives Force to the Constitution’s Provisions
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2.
The Constitution’s adversaries – betrayed by the indiscreet zeal of their opposition – attacked this provision, even though without it the Constitution would be evidently and radically defective.
To prove this, one need only suppose for a moment that the Convention had included a provision in favor of the supremacy of the State constitutions.
In the first place, each of those constitutions had invested their State legislatures with absolute sovereignty in all cases not excepted by the Articles of Confederation.
Without this new provision, all the authorities contained in the Constitution – so far as they exceeded those enumerated in the Articles of Confederation – would have been annulled, thus reducing the Congress to the same impotent condition as its predecessors.
In the second place, the constitutions of some of the States did not even expressly and fully recognize the powers of the Congress under the Articles of Confederation.
In those States, the inclusion of a Federal provision expressly saving of the supremacy of State constitutions would bring into question every power contained in the Constitution.
And since State constitutions differ much from each other, it might happen that a treaty or national law of great and equal importance to all the States would interfere with some State constitutions but not others, leaving such treaty or law valid in some States but without effect in others.
For the first time in history, the world would have witnessed a system of government founded on an inversion of the fundamental principles of all government: the authority of the whole society everywhere subordinated to the authority of the parts.
The Convention would have created a monster, in which the head was under the direction of its members.
The Oath to Support the Constitution Is Important
The third (and final) paragraph of article VI provides: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
Some have asked why the Convention thought it necessary to bind by oath State magistrates to support the Federal Constitution, but not to bind the officers of the United States by like oath in favor of the State constitutions.
The most obvious and conclusive reason is that members of the Federal government will have no agency in carrying the State constitutions into effect.
The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the Federal Constitution.
The election of the President and Senate will depend in all cases on the legislatures of the several States.
And the election of the House of Representatives will equally depend on State legislatures in the first instance, and probably will forever be conducted by the officers and according to the laws of the States.
Other provisions for giving efficacy to the Federal powers belong to the executive and judicial departments, but these are reserved for particular examination in later papers.
We have now reviewed in detail all the articles composing the sum or quantity of power delegated by the Constitution to the Federal government, and we are brought to the undeniable conclusion that no part of the power is unnecessary or improper for accomplishing the necessary objects of the union of the United States.
Madison
[Ed. note: Article VI of the Articles of Confederation set forth the original prohibition of letters of marque.]