These six essays form the sixth major division of The Federalist Papers.
Having established the legitimacy of the Constitutional Convention and the republican character of the new government (Nos. 37–40), Madison now turns to the concrete question that most alarmed the Constitution’s opponents: Has the proposed system given the Federal government too much power at the expense of the States?
He answers systematically.
Federalist 41 opens with a broad survey of the powers conferred by the Constitution, defending in particular the extensive authority over national defense and taxation as necessary means to necessary ends.
Federalist 42 and 43 continue the inventory, examining the powers that regulate foreign relations, interstate commerce, naturalization, bankruptcy, weights and measures, post offices, copyrights and patents, and a series of miscellaneous objects of general utility (including the guarantee of a republican form of government to every State).
Federalist 44 then shifts from the grants of power to the restrictions placed on the States, and offers a careful defense of the Necessary and Proper Clause and the Supremacy Clause.
Federalists 45 and 46 confront the central Anti-Federalist fear head-on: that the new Federal government will swallow the State governments. Madison argues the opposite. The residual powers left to the States are far more numerous; the people’s primary attachment will remain with their State governments; and any attempt by the Federal government to encroach would be met with decisive resistance from the States and the People themselves.
Taken together, Nos. 41–46 demonstrate that the Constitution’s distribution of power is neither a consolidation nor a threat to the States. It is a carefully calibrated compound in which the Federal government is given the limited but energetic authority required for national purposes, while the States retain the bulk of ordinary governing power and the ultimate check of popular support.
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.
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 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.
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 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.
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.
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.
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.
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.
A bad argument, case, or cause seldom fails to betray itself.
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.
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?
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!
Madison
Federalist 42: Exclusive Federal Powers Regulating Relations with Foreign Powers and Among States Foster Harmony
THE SECOND AND THIRD CLASSES OF POWERS lodged in the Federal government consist of those which regulate our relations with foreign nations, and those which provide for the harmony of intercourse among the States.
Exclusive Federal Powers Are Necessary to Regulate Our Relations with Foreign Nations
If we are to be one nation in any respect, it ought to be in respect to other nations. This class of powers forms an obvious and essential part of the Federal government.
These include the powers to:
(1) make treaties,
(2) send and receive ambassadors and other public ministers and consuls,
(3) define and punish piracies and felonies committed on the high seas and offenses against the law of nations, and
(4) regulate foreign commerce, including a power to prohibit the importation of slaves after the year 1808, and to lay an intermediate duty of ten dollars per head as a discouragement to such importations.
The second and third classes of powers lodged in the Federal government consist of those which regulate our relations with foreign nations, and those which provide for the harmony of intercourse among the States.
The Power to Make Treaties and Send and Receive Ambassadors and Counsuls
The powers to make treaties and to send and receive ambassadors need no explanation, for both were contained in the Articles of Confederation.
These powers are continued in the Constitution, with two essential differences.
With respect to the power to make treaties, the Constitution removes the former limitations on that power, which had allowed State regulations to frustrate treaties to a substantial degree.
With respect to the power to send and receive ambassadors, the Constitution adds the power of appointing and receiving “other public ministers and consuls.”
Formerly, the power was limited to appointing and receiving ambassadors, but Congress has found it expedient to adopt the practice of employing grades of public ministers inferior to ambassadors, and sending and receiving consuls.
The Constitution validates this practice.
Gradual and Incremental Usurpations of Power Occur in the Details
The most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power.
Under the Articles of Confederation, the Congress had in many instances exceeded its chartered authority by appointing lesser grades of public ministers.
Rectifying the omission regarding consuls is itself no inconsiderable argument in favor of the Constitution, which corrects the more obvious and striking defects of the old while no less studiously correcting the lesser defects as well.
Felonies on the High Seas and Offenses Against the Law of Nations
A still greater improvement on the Articles of Confederation is the creation of a Federal power to define and punish piracies and felonies committed on the high seas, including offenses against the law of nations.
The Articles did not provide for the case of offenses against the law of nations, making it possible for a single State to embroil the Confederacy in disputes with foreign nations.
The expanded Federal power on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses.
The definition of piracies can be left to the laws of nations, although a legislative definition of them is found in most municipal codes.
A definition of felonies on the high seas is required.
Felony is a term of loose signification in both the common and statutory law of England, making them dishonorable and illegitimate guides to a proper definition.
When one looks to the word as defined in the codes of the several States, a common definition seems impractical.
“Felony” is not precisely defined the same way in any two of the States.
Further variations appear in each State with every revision of its criminal laws.
For the sake of certainty and uniformity, the power of defining felonies in this case was in every respect necessary and proper.
Submitting the regulation of foreign commerce to the Federal government was explained in Federalist 11 and Federalist 22 and thus needs no additional proof.
It would be a happy event for the unfortunate Africans to have laid before them the prospect of freedom from the oppressions of their European brethren that is equal to what the colonists so recently experienced.
The Prohibition on the Importation of Slaves Is Postponed for One Generation, so the Barbarous Trade May Be Abolished Forever
The exercise of Federal power to prohibit the importation of slaves is postponed until the year 1808.
Preferably there should be no delay, but existing practices explain this temporal restriction on the power of the Federal government to discourage this unnatural and barbaric trade.
It will be a great point gained in favor of humanity if – during a period of twenty years – the slave trade in the States terminates forever.
Within that generation it will receive a considerable discouragement from the Federal government, and may be totally abolished during that period with the concurrence of the few States which continue the traffic.
It would be a happy event for the unfortunate Africans to have laid before them the prospect of freedom from the oppressions of their European brethren that is equal to what the colonists so recently experienced.
The exercise of Federal power to prohibit the importation of slaves is postponed until the year 1808. Preferably there should be no delay, but existing practices explain this temporal restriction on the power of the Federal government to discourage this unnatural and barbaric trade. It will be a great point gained in favor of humanity if – during a period of twenty years – the slave trade in the States terminates forever.
The Third Class of Federal Powers Will Provide for Harmony and Proper Intercourse among the States
The restraints against State authority that will advance the harmony and proper intercourse among the States are discussed in Federalist 44.
Certain aspects of judicial power will promote the same end, but these are discussed when we arrive at the structure and organization of the Federal judiciary in Federalist 80 and Federalist 81.
Presently we confine ourselves to a cursory review of the other powers that will provide for an harmonious intercourse among the States, namely, the powers:
(1) to regulate commerce among the several States and the Indian tribes,
(2) to coin money, regulate the value thereof, and of foreign coin,
(3) to provide for the punishment of counterfeiting the current coin and securities of the United States,
(4) to fix the standard of weights and measures,
(5) to establish a uniform rule of naturalization,
(6) to enact uniform laws of bankruptcy,
(7) to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States, and
(8) to establish post offices and post roads.
The Power to Regulate Interstate Commerce Is Intended to Restrict Injurious Duties
“The Congress shall have the Power . . . [¶] To regulate Commerce . . . among the several States, . . . .” Art. I, § 8, cl 3.
Experience highlights the inadequacy of the prior Federal authority to regulate the commerce among the States.
The grant of supplemental power to regulate commerce among the States remedies this defect, and ensures the great and essential power of regulating foreign commerce is no longer incomplete and ineffectual.
One very material object of conferring this power was to relieve States which import and export through other States from the improper contributions levied for the mere transport of goods.
If States were at liberty to regulate trade between State and State, one can easily foresee how articles of import and export passing through a State would be loaded with duties which would fall both on the consumers of the imports and the makers of the exports.
Experience highlights the inadequacy of the prior Federal authority to regulate the commerce among the States. The grant of supplemental power to regulate commerce among the States remedies this defect, and ensures the great and essential power of regulating foreign commerce is no longer incomplete and ineffectual.
Allowing Duties on Interstate Transport Stimulates Passion rather than Reason
If duties for the mere passage were allowed, experience advises that such practices would be introduced by future contrivances.
A common knowledge of human passions and interests further counsels that such contrivances would nourish unceasing animosities.
Not improbably such animosities would terminate in serious interruptions of the public tranquility.
Indirect Taxation of the Citizens of Other States Is Improper
The desire of commercial States to collect – in any form – an indirect revenue from their uncommercial neighbors is as impolitic as it is unfair.
It would stimulate the injured parties – by resentment as well as interest – to resort to less convenient channels for their foreign trade.
In the end, the mild voice of reason – pleading before public bodies the cause of a permanent national interest greater than revenue – is too often drowned by the clamors of an impatient avidity for immediate and immoderate gain.
Foreign Experience with Interstate Duties Demonstrates the Need for Federal Control
Other examples demonstrate the necessity of a superintending authority over the reciprocal trade of confederated unions like the United States.
The Swiss Union of confederated cantons obliges on each the free passage of goods among them, without an augmentation of the tolls.
The Union of the Netherlands requires its members to obtain permission before establishing imposts disadvantageous to their neighbors.
In the German empire, there is a law that princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the general assembly of imperial estates.
Unfortunately, as I observed in Federalist 19, that empire has not followed the written law, thereby producing mischiefs similar to those we experienced under the Articles of Confederation.
Regulating Commerce with the Native Tribes
The Constitution delegates to the Congress the power: “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Art. I, § 8, cl. 3.
By this provision the Federal government is entrusted with the sovereign power to regulate commerce with the Indian tribes.
The power is very properly unfettered from two obscure and contradictory limitations in the Articles of Confederation, which had granted Congress “the sole and exclusive right and power of . . . regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated.” Articles of Confederation of 1781, art. IX, ¶ 4.
This provision has resulted in much contention, confusion and perplexity in Federal councils, particularly concerning what Indians should be deemed “members of a State.”
And it is absolutely incomprehensible how the trade with Indians – though not members of a State, yet residing within its legislative jurisdiction – can be regulated by an external authority like the United States without intruding on the internal rights of States to enact legislation.
It is a mathematical impossibility to reconcile a complete sovereignty in State governments with a partial sovereignty in the Federal government. One cannot take away a part and yet let the whole remain. If the whole remains, nothing has been taken away.
It Is Impossible to Grant a Partial Sovereignty to the Federal Government, Yet Retain a Complete Sovereignty with the States
The immediately-preceding example was not the only case in which the Articles of Confederation inconsiderately endeavored to accomplish impossibilities.
It is a mathematical impossibility to reconcile a complete sovereignty in State governments with a partial sovereignty in the Federal government.
One cannot take away a part and yet let the whole remain. If the whole remains, nothing has been taken away.
The Exclusive Federal Power to Coin and Regulate the Value of Money
Only one thing need be said on the powers to coin money, to regulate its value, and to regulate the value of foreign coin.
Congressional authority pursuant to the Articles of Congress was restrained to the regulation of coin struck by their own authority, or that of the respective States.
The exclusive Federal power to regulate the value of foreign coin is new. It was added because the uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States.
The Power to Punish Counterfeiting Is Properly Vested in the Federal Government
The punishment for counterfeiting the public securities and the current coin is naturally submitted to that authority which is to secure the value of both.
The Regulation of Weights and Measures
The regulation of weights and measures is transferred from the Articles of Confederation, and is founded on like considerations with the preceding power of regulating coin.
The Rules of Naturalization Must Be under Federal Control
The dissimilarity in the rules of naturalization were long considered a fault in the prior system, as laying a foundation for intricate and delicate questions.
In the fourth article of the Confederation, with my emphasis, it was declared “that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce . . . .” Articles of Confederation of 1781, art. IV, ¶ 1 (emphasis added).
The confusion of language here is remarkable.
Why were the terms free inhabitants are used in one part of the article, free citizens in another, and people in another?
What was intended by superadding the phrases “all privileges and immunities of free citizens” and “all the privileges of trade and commerce”?
Read literally, the article provides that the free inhabitants of a State – although not citizens of such State – are nonetheless entitled to all the privileges of free citizens while in any other State.
These free inhabitants would thus have greater privileges in other States than they may be entitled to in their own State.
In order to eliminate these and other disparities, the Constitution has authorized the Federal government to establish a uniform rule of naturalization throughout the United States.
The Power to Regulate Bankruptcies Must Be Federal
The power of establishing uniform laws of bankruptcy is also committed to the Federal government. Art. I, § 8, cl. 4.
This power is intimately connected with the regulation of commerce and is necessary to prevent the fraudulent movement of property between States to disadvantage creditors.
No one questions its expediency.
The Federal Government Is Properly Granted the Power to Prescribe How the Public Acts, Records and Judicial Proceedings May Be Proved in Another State
The Constitution provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Art. IV, § 1.
The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on its indeterminate counterpart in the Articles of Confederation.
The power here established may be rendered a very convenient instrument of justice. It will be particularly beneficial on the borders of contiguous States, where the property and effects liable to justice may be suddenly and secretly removed to the foreign jurisdiction at any stage of the process.
The Power to Establish Post Offices and Post Roads Will Benefit Everyone
Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.
The power of establishing post offices and post roads, Art. I, § 8, cl. 7, is not only a harmless power, but one that will produce many improvements – if judiciously managed.
Madison
Federalist 43: Miscellaneous Powers Examined
THE FOURTH CLASS OF POWERS lodged in the Federal government comprises several miscellaneous powers I now examine.
The Power to Issue Patents and Copyrights
Congress is granted the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Art. I, § 8, cl. 8.
The utility of this power will scarcely be questioned.
In Great Britain, the copyright of authors has been solemnly adjudged to be a right of common law.
The right to useful inventions seems with equal reason to belong to the inventors.
Protecting the claims of individual authors and inventors fully coincides with the public good.
The States acting alone would be unable to make effectual provisions for the protection of either.
In Great Britain, the copyright of authors has been solemnly adjudged to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. Protecting the claims of individual authors and inventors fully coincides with the public good.
The Power to Establish the District of Columbia
The next miscellaneous power allows Congress “[t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.” Art. I, § 8, cl. 19.
The indispensable necessity of complete authority at the seat of government carries its own evidence.
It is a power exercised by every legislature in the United States – I might say of the world – by virtue of its general supremacy. Without it, the public authority might be insulted and its proceedings interrupted with impunity.
Further, the members of the Federal government would depend on the State comprehending the seat of the government for protection in the exercise of their duty, thereby imputing an influence over the national councils, which would be dishonorable to the Federal government and dissatisfactory to the other States.
This consideration carries more weight as public improvements gradually accumulate at the stationary residence of the government.
It both would be too great a public pledge left in the hands of a single State, and create many obstacles to a removal of the government.
The extent of this Federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature.
It is to be appropriated to this use with the consent of the State or States ceding it.
As each ceding State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it, the inhabitants will find sufficient inducements of interest to become willing parties to the cession.
A municipal legislature for local purposes – derived from their own votes – will of course be allowed its citizens, and thus they will have their voice in the election of the government which is to exercise authority over them.
Since the authority for the cession will be derived from the whole people of the State by their ratification of the Constitution, and the both the legislature of the ceding State and the inhabitants of the ceded part will concur in the cession, every imaginable objection seems to be obviated.
The necessity of a similar authority over forts, magazines, and the like is not less evident.
The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular State.
It would be improper for the places on which the security of the entire United States may depend to in any degree be dependent on a particular member of it.
All objections and scruples are here also obviated by requiring the concurrence of the States concerned in every such establishment.
The Power to Declare the Punishment for Treason Does Not Extend to Descendants
“The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” Art. III, § 4, cl 2.
As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it.
But as novel and artificial treasons have been the great engines by which violent factions – the natural offspring of free government – have alternatively wreaked their malignity on each other, the Convention imposed a barrier to this peculiar danger by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress in punishing it beyond the consequence of the guilt of its author.
The Power to Admit New States
“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” Art. IV, § 3, cl 1.
The Articles of Confederation had no provision on this important subject.
Canada was to be admitted of right, on her joining in the measures of the United States.
Other colonies – by which were evidently meant the other British colonies – were could be admitted the discretion of nine States.
The eventual establishment of new States seems to have been overlooked by the compilers of that instrument.
We have seen the inconvenience of this omission, and the assumption of power into which the Congress was led by it.
With great propriety, therefore, has the new system supplied the defect.
The general precaution that no new States shall be formed without the concurrence of Congress and the States concerned is consonant to the principles which ought to govern such transactions.
The inclusion of the precaution against the erection of a new State by partitioning an existing one without its consent quiets the jealousy of the larger States, just as jealousy of the smaller States is quieted by a like precaution against a junction of States without their consent.
As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as novel and artificial treasons have been the great engines by which violent factions – the natural offspring of free government – have alternatively wreaked their malignity on each other, the Convention imposed a barrier to this peculiar danger by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress in punishing it beyond the consequence of the guilt of its author.
The Power to Regulate the Territories and Property of the United States
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” Art. IV, § 3, cl. 2.
This is a power of very great importance and required by considerations similar to concerning formation of new States.
The proviso was rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public.
The Guaranty of Republican Government and Protection from Invasion
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” Art. IV, § 4.
In a confederacy founded on republican principles and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations.
The more intimate the nature of a confederacy may be, the greater interest have the members in the political institutions of each other, and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained.
A right implies a remedy, and where else could the remedy be deposited than the Constitution?
Governments composed dissimilar principles and forms have proven less adapted to a federal coalition of any sort, than have those of a kindred nature.
“As the confederate republic of Germany,” says Montesquieu, “consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland. Greece was undone,” he adds, “as soon as the king of Macedon obtained a seat among the Amphictyons.” In the case of Macedon, the disproportionate force – as well as the monarchical form of the new confederate – undoubtedly had its share of influence on the events.
Some might question the need of a guarantee of a republican government.
But if the interposition of the Federal government should not be needed, the provision for such an event in the Constitution will be a harmless superfluity.
But who can say what experiments may be produced by the caprice of particular States, the ambition of enterprising leaders, or the intrigues and influence of foreign powers?
To those who say a guarantee may become a pretext for Federal alterations to a State government without the concurrence of the other States, it may be answered that if the Federal government should interpose by virtue of this constitutional authority, it will be bound to pursue the authority. But the authority extends no further than to a guaranty of a republican form of government.
This supposes a preexisting government of the form which is to be guaranteed.
As long as the existing republican forms are continued by the States, they are guaranteed by the Federal Constitution.
Whenever a States chooses to substitute another republican form, they have a right to do so, and to claim the Federal guaranty for the latter.
The only restriction imposed on the States is that they shall not exchange republican for antirepublican Constitutions.
This restriction will hardly be considered a grievance
Some might question the need of a guarantee of a republican government. But if the interposition of the Federal government should not be needed, the provision for such an event in the Constitution will be a harmless superfluity. But who can say what experiments may be produced by the caprice of particular States, the ambition of enterprising leaders, or the intrigues and influence of foreign powers?
A protection against invasion is due from every society to the parts composing it.
The latitude of the expression here secures each State against foreign hostility as well as against ambitious or vindictive enterprises of its more powerful neighbors.
The history of ancient and modern confederacies proves the weaker members of a confederate union ought not be insensible to the policy of this article.
It follows that protection against domestic violence is added with equal propriety.
Even among the Swiss cantons – although technically not under one government – provision is made for this object.
The history of that league informs us mutual aid is frequently claimed and afforded.
A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature.
From a theoretical republican perspective, a majority has not the right – or a minority the force – to subvert a government, so Federal interposition should never be required.
But theoretical reasoning – in this as in most cases – must be qualified by the lessons of practice.
Illicit combinations for purposes of violence can be formed in a majority of a county or a district of a State.
Similarly, an illicit combination also can form a majority of an entire State, especially a smaller one.
Just as the authority of the State ought to protect a municipal government in the case of a local combination, the Federal government ought to support the State in the case of a larger one.
Besides, certain parts of State constitutions are so interwoven with the Federal Constitution that a violent blow to one communicates the wound to the other.
From a theoretical republican perspective, a majority has not the right – or a minority the force – to subvert a government, so Federal interposition should never be required. But theoretical reasoning – in this as in most cases – must be qualified by the lessons of practice.
Insurrections in a State will rarely induce a Federal interposition unless their number threatens the friends of government.
It is much better that the violence in such cases be repressed by the superintending State government than letting the majority maintain their cause by a bloody and obstinate contest.
The mere existence of a Federal right to interpose will generally prevent the necessity of exerting it.
It is not always true that force and right are necessarily on the same side in republican governments.
The minor party may possess such a superiority of pecuniary resources, military talents and experience, or secret succors from foreign powers as to render it superior in an appeal to the sword.
A more compact and advantageous position can turn the scale against a superior number that is less capable of a prompt and collected exertion of its strength.
In a trial of actual force, nothing is more chimerical than to imagine victory may be calculated by the rules governing a census of inhabitants or the outcome of an election!
Insurrections in a State will rarely induce a Federal interposition unless their number threatens the friends of government. It is much better that the violence in such cases be repressed by the superintending State government than letting the majority maintain their cause by a bloody and obstinate contest.
It may happen that a minority of citizens may become a majority of persons by the accession of alien residents, and the casual concourse of adventurers and those unauthorized to vote.
And in some of the States there is an unhappy species of population who are sunk below the level of men during the calm of regular government, but who emerge into the human character in the tempestuous scenes of civil violence, and give a superiority of strength to any party with which they may associate themselves.
In a case of two violent factions flying to arms and tearing a State to pieces – and there is doubt on which side justice lies – there are no better umpires than the representatives of States not heated by the local flame.
The impartiality of neighbors would unite the affection of friends within the affected State.
It would be a happy day if all free governments could enjoy such a remedy for its infirmities.
Perhaps a project equally effectual could be established for the universal peace of mankind.
In the case of an insurrection pervading all the States with superiority of an entire force, it would be without the compass of human remedies, so fortunately it is not within the compass of human probability.
It is a sufficient recommendation of the Constitution that it diminishes the risk of a calamity for which no possible constitution can provide a cure.
Among the advantages of a confederate republic enumerated by Montesquieu, an important one is “that should a popular insurrection happen in one of the States, the others are able to quell it.
Should abuses creep into one part, they are reformed by those that remain sound.
The Power to Pay Antecedent Debts
“All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” Art. VI, cl. 1.
This can only be considered as a declaratory proposition inserted primarily for the satisfaction of the foreign creditors of the United States, to dispel doubts that we will adhere to the pretended doctrine that a change in the political form of civil society has the magical effect of dissolving its moral obligations.
In the spirit which usually characterizes little critics, it was argued the validity of debts and engagements in favor of the United States also ought to have been included.
Its omission has been transformed and magnified into a plot against the national rights.
These small critics feign ignorance of the well-known principle that engagements are in their nature reciprocal, and an assertion of their validity on one side necessarily involves a validity on the other side.
Since the article is merely declaratory, the establishment of the principle in one case is sufficient for every case.
Every constitution must limit its precautions to dangers that are not altogether imaginary.
No real danger can exist that the Federal government would even dare to cancel the debts justly due to the public on the pretext here condemned.
The Power to Provide for Amendments to the Constitution
Article V sets forth the methods by which the Constitution may be amended: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
The Convention saw that useful alterations will be suggested by experience, and therefore provided a mode for introducing them, which is stamped with every mark of propriety.
By requiring the two-thirds of both chambers of the Congress or two-thirds of State legislatures to initiate the process, Article V guards equally against that extreme facility which would render the Constitution too mutable, and that extreme difficulty which might perpetuate its discovered faults.
It equally enables the Federal and the State governments to originate the amendment of errors as may be pointed out by the experience on one side or the other.
The exception in favor of the equality of suffrage in the Senate was inserted as a palladium to the smaller States to secure their residual sovereignty that is implied and secured by that principle of coequal representation in one branch of the legislature.
The other exception was admitted on the same considerations which produced the privilege defended by it.
The Convention saw that useful alterations will be suggested by experience, and therefore provided a mode for introducing them, which is stamped with every mark of propriety. By requiring the two-thirds of both chambers of the Congress or two-thirds of State legislatures to initiate the process, Article V guards equally against that extreme facility which would render the Constitution too mutable, and that extreme difficulty which might perpetuate its discovered faults.
Initial Ratification of the Constitution by Nine States
Article VII provides: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” This article speaks for itself.
Only the express authority of the People through their State Conventions could give due validity to the Constitution.
To have required the unanimous ratification of the thirteen States would have subjected the essential interests of the whole to the caprice or corruption of a single member.
It would have marked an inexcusable want of foresight in the Convention.
Two questions of a very delicate nature presented themselves on the occasion of the ratification of the Constitution.
The first inquires into the basis for superseding the Confederation – a solemn form of a compact among the States – without the unanimous consent of the parties to it.
This is answered at once by recurring to the absolute necessity of the case, the great principle of self-preservation, and the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.
An answer also appears in the manner by which the Articles of Confederation were ratified.
In many States, the Articles received no higher approval than a mere legislative ratification.
Under the principle of reciprocity, the obligations of the other States should be reduced to the same standard.
A compact between independent sovereigns founded on ordinary acts of legislative authority can pretend to no higher validity than a league or treaty between the parties.
It is an established doctrine on the subject of treaties that all the articles are mutually conditioned on each other, and that a breach of any one article is a breach of the whole treaty.
A breach by one of the parties absolves the others, and authorizes them to pronounce the compact violated and void.
The Articles were subject to multiple and important infractions.
The second inquiry focuses on the relationship between the States ratifying the Constitution and a State which chooses not to become a party to it.
Although no political relation can subsist between the assenting and dissenting States, moral relations will remain uncancelled.
Claims of justice will remain in force on both sides, and must be fulfilled.
The rights of humanity must in all cases be duly and mutually respected.
It is hoped that considerations of a common interest, the remembrance of the endearing scenes of the past, and the anticipation of a speedy triumph over the obstacles to reunion, will not urge in vain moderation on one side and prudence on the other.
Madison
Federalist 44: Restrictions on the Authority of the Several States; the Necessary and Proper Clause and the Supremacy Clause Explained
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.]
Federalist 45: The Federal Government Will Be Less Dangerous to State Governments than Vice-Versa
THAT THE POWERS TRANSFERRED to the Federal government are necessary and proper was shown in Federalist 33 and Federalist 44.
Now I turn to a secondary issue: whether the whole mass of those Federal powers will be dangerous to that portion of authority left in the States.
Opponents of the Constitution tend to exhaust themselves in this secondary inquiry, thereby overlooking or confusing the principal goal, which is to ensure the Constitution has invested the Federal government with the minimum degree of power absolutely necessary for it to function successfully.
I have already shown that the Federal government is essential to the security of the People of America against
(1) foreign dangers,
(2) contentions and wars among the different States,
(3) violent and oppressive factions, which embitter the blessings of liberty, and
(4) military establishments, which gradually poison the very fountain of liberty.
In a word, the Federal government is essential to the happiness of the People of America.
It is preposterous object to a Federal government because it may lessen the importance of individual State governments.
We Fought the Revolution for Peace, Liberty and Safety, Not to Protect State Officers
Was the precious blood of thousands spilt and the hard-earned substance of millions lavished in the Revolution – not so the People of America should enjoy peace, liberty, and safety – but that State and local governments might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?
We have heard of the impious doctrine of the Old World, that the people were made for kings, and not kings for the people. Is the same doctrine to be revived in the New World in another shape?
Must the solid happiness of the People be sacrificed to the views of political institutions?
Should politicians presume we will forget that the public good – which is the real welfare of the great body of the People – is the supreme object to be pursued?
Was the precious blood of thousands spilt and the hard-earned substance of millions lavished in the Revolution – not so the People of America should enjoy peace, liberty, and safety – but that State and local governments might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?
The Public Good and Happiness Must Be the Goals of Any Sound Government
No form of government has any value other than as it is fitted for attainment of the public good.
I would have rejected the Constitution and the United States if either had been adverse to the public happiness.
If the sovereign powers of the States cannot be reconciled to the happiness of the People, the sovereign powers must be sacrificed.
The Extent of the Federal Government Will Not Endanger the Unsacrificed Residue of State Sovereignty
I have in the course of these papers touched upon important considerations which discountenance the supposition that the operation of the Federal government will by degrees prove fatal to the State governments.
The more I resolve the subject, the more fully I am persuaded that the balance of sovereignty is much more likely to be disturbed by the States rather than by the Federal government.
Historical Examples Demonstrate the Disruptive Power of Subordinate States
In all the examples of ancient and modern confederacies I have studied, the member states themselves continually demonstrated the strongest tendency to despoil the authority of the general governments, which lacked the capacity to defend themselves against the encroachments.
Since the States retain a very extensive portion of active sovereignty under the Constitution, we should not disregard these historical examples.
We have heard of the impious doctrine of the Old World, that the people were made for kings, and not kings for the people. Is the same doctrine to be revived in the New World in another shape? Must the solid happiness of the People be sacrificed to the views of political institutions? Should politicians presume we will forget that the public good – which is the real welfare of the great body of the People – is the supreme object to be pursued?
The Achaean League and Lycian Confederacy
In the Achaean league, for instance, the federal head probably had a degree and species of power which gave it a considerable likeness to the government framed by our Constitutional Convention.
The Lycian Confederacy bears a still greater analogy to it.
Yet history does not inform us that either of these federal leagues ever degenerated – or tended to degenerate – into a single consolidated government, even though external forces pressing the component parts together were much more numerous and powerful than in our case.
On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions – and finally the disunion – of its subordinate governments.
The Feudal System Failures
We have seen a similar propensity exemplified in the feudal system.
Even with the want of proper sympathy in every instance between the local sovereigns and the people, and in some instances between the general sovereign and the people, the local sovereigns usually prevailed in the rivalry for encroachments.
Had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would today consist of as many independent princes as there were formerly feudatory barons.
State Governments Have Multiple Advantages over the Federal Government
In the United States, State governments have advantages over the Federal government, whether I compare them in respect to:
(1) the immediate dependence of the one on the other,
(2) the weight of personal influence which each side will possess,
(3) the powers respectively vested in them,
(4) the predilection and probable support of the People, and
(5) the disposition and faculty of resisting and frustrating the measures of each other.
The State governments will be regarded as constituent and essential parts of the Federal government, while the Federal government will in no way be essential to the operation or organization of the State governments.
For example, without the intervention of the State legislatures, the President of the United States cannot be elected at all.
State governments must in all cases have a great share in his appointment, and in most cases they will themselves determine it.
The Senate will be elected absolutely and exclusively by the State legislatures.
Even the House of Representatives, though drawn immediately from the People, will be chosen very much under the influence of that class of individuals whose influence over the People obtains for themselves an election into the State legislatures.
Thus, each of the principal branches of the Federal government will owe its existence more or less to the favor of the State governments.
It follows that each branch of Federal government will feel a dependence on State governments, and that dependence will likely beget a disposition that is more obsequious than overbearing towards the State governments.
Due to the number and proximity of State government employees, there will be more personal influence on the side of the States than on the side of Federal government.
On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the Federal government, and very little, if at all, to the local influence of its members.
The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States.
Personal Influence with the People Favors State Officials
Due to the number and proximity of State government employees, there will be more personal influence on the side of the States than on the side of Federal government.
The members of the legislative, executive, and judicial departments of the States, together with the State justices of peace, officers of militia, ministerial officers of justice, as well as all the county, corporation, and town officers, will intermix with and have particular acquaintance with every class and circle of persons.
They must therefore exceed – beyond all proportion, both in number and influence – those of every description who will be employed in the administration of the Federal system.
If we compare the number of members of the legislative, executive and judicial departments of the States with the members of the corresponding departments of the United States, and also compare the number of State militia officers with the number of Federal military officers established now and in futurity, the advantage of the States is decisive.
States Will Have More Revenue Collectors
If the Federal government is to have collectors of revenue, the State governments will have theirs also.
Since the Federal collectors of revenue will be principally on the seacoast, and not very numerous, and State collectors of revenue will be spread over the face of the country and much more numerous, the advantage lies with the States.
It is true the Federal government will possess, and may exercise, the power of collecting internal as well as external taxes throughout the States.
Resort to this power is improbable except for supplemental purposes of revenue.
An option will then be given to the States to supply their quotas by previous collections of their own. The power of taxation will, for the most part, be connected with the power to regulate foreign commerce.
The actual collection of revenue pursuant to the immediate authority of the United States will generally be made by officers appointed by the several States.
The powers reserved to the States will extend to all the objects which – in the ordinary course of affairs – concern the lives, liberties, and properties of the People, and the internal order, improvement, and prosperity of each State.
State Officers Will Be Clothed with Federal Authority
Just as the exercise of Federal authority by State officers appears in the organization and exercise of the judicial power – where the officers of the States will be clothed with the correspondent authority of the United States – the influence of the whole number of collectors of internal revenue appointed by the Federal government would not compare with that exercised by the multitude of corresponding State officers.
For every Federal collector allotted to a district, there would be at least 30 officers of different descriptions – many of them persons of character and weight – whose influence would lie on the side of the State.
The powers delegated by the Constitution to the Federal government are few and defined.
Those which are to remain in the State governments are numerous and indefinite.
The Federal power will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.
The Powers Reserved to the States Are Substantial
The powers reserved to the States will extend to all the objects which – in the ordinary course of affairs – concern the lives, liberties, and properties of the People, and the internal order, improvement, and prosperity of each State.
The operations of the Federal government will be most extensive and important in times of war and danger, and those of State governments in times of peace and security.
Since times of war and danger will probably bear a small proportion to times of peace and security, the State governments will here enjoy another advantage over the Federal government.
Assuming adequate Federal powers are rendered to the national defense, then less frequently will appear those scenes of danger which might favor the ascendancy of the Federal government over the governments of the particular States.
The changes the new Constitution proposes consist much less in the addition of new powers to the Union than in the invigoration of its original powers.
The Constitution Reinvigorates the Powers the People Originally Granted
The changes the new Constitution proposes consist much less in the addition of new powers to the Union than in the invigoration of its original powers.
While the regulation of commerce is a new power, it seems to be an addition few oppose, and from which no apprehensions are entertained.
The powers relating to war and peace, armies and fleets, and treaties and finance were all vested in the existing Congress by the former Articles of Confederation.
The proposed changes do not enlarge these powers; they merely substitute a more effectual mode of administering them.
Direct Taxation of Individuals Is Authorized
The changes relating to taxation are the most important, yet the Congress under our former government had complete authority to require of the States indefinite supplies of money for the common defense and general welfare, and so too will future Congresses have to same power over individuals.
Had the States complied punctually with the Articles of Confederation – or their obligations enforced through peaceable collection from individuals – it is highly doubtful State governments would have thereby lost their constitutional powers and gradually undergone an entire consolidation, as opponents assert will happen to the Federal government.
To make such an argument is to say the existence of State governments is incompatible with any system whatever that accomplishes the essential purposes of the United States.
Madison
Federalist 46: The Ultimate Authority Rests with the People, Not Federal or State Governments
RESUMING THE SUBJECT OF FEDERALIST 45, I now inquire whether the predilection and support of the People will lie with the Federal government or with State governments.
Although appointed differently, both governments are substantially dependent on the great body of the citizens of the United States.
In fact, the adversaries of the Constitution omitted the People altogether in their reasonings on this topic, thereby ignoring that ultimate authority resides in the People alone.
The Federal and State governments are not mutual rivals and enemies, as some contended.
The Federal and State governments are but different agents and trustees of the People, constituted with different powers, and designed for different purposes.
Thus, the authorities of the Federal and State governments do not depend merely on the comparative ambition or location of each, or whether one will enlarge its sphere of jurisdiction at the expense of the other.
Truth and decency require the event in every case will depend on the sentiments and sanction of their common constituents.
The People Will Naturally Favor State Governments
The first and most natural attachment of the People will be to the governments of their respective States.
A greater number of individuals will rise into the administration of State governments – and from these a greater number of offices and emoluments will flow – and by the superintending care of these individuals the domestic and personal interests of the People of each State will be provided for and regulated.
The People will be more familiar and minutely conversant with the affairs of State officials, with whom they will share greater ties of personal acquaintance, friendship, family and party attachment, than with Federal officials.
Therefore the popular bias may well be expected most strongly to incline the People to favor State officials.
Experience speaks the same language.
During the Revolutionary War, the Federal administration had as great an activity and importance as it can have in any future circumstance whatever.
It was engaged in a course of measures whose object was the protection of everything that was dear, and the acquisition of everything that could be desirable to the People at large.
Nevertheless, after the transient enthusiasm for the early Congresses was over, it was invariably found the attention and attachments of the People turned anew to their own State governments.
The Federal council was at no time the idol of popular favor. In practice, those who sought to build their political futures on the prepossessions of their fellow-citizens usually opposed enlargement of the Federal sphere.
The Federal and State governments are not mutual rivals and enemies, as some contended. The Federal and State governments are but different agents and trustees of the People, constituted with different powers, and designed for different purposes.
If the Federal Government Becomes More Popular than State Governments, It Would Be Due to a Better Administration
If in the future the People should overcome all their antecedent propensities and become more partial to the Federal government than to their State governments, the change could only have resulted from the manifest and irresistible proofs of a better Federal administration.
Should that occur, the People ought not be precluded from giving most of their confidence where they discover it is most due.
But even in that event, the State governments would have little to apprehend, due to the limited sphere in which the Federal power can be administered advantageously.
State Governments May More Easily Frustrate the Laws of the Federal Government than vice versa
The remaining points of comparison between the Federal and State governments are the disposition and faculty they respectively possess to resist and frustrate the measures of each other.
I have already proven the members of the Federal government will be more dependent on the members of the State governments, than vice versa.
Furthermore, the prepossessions of the People – on whom both the Federal and State governments depend – will be more on the side of the State governments.
If in the future the People should overcome all their antecedent propensities and become more partial to the Federal government than to their State governments, the change could only have resulted from the manifest and irresistible proofs of a better Federal administration.
The prepossessions the members themselves will carry into the Federal government also will be more favorable to the States, while rarely will members of State governments carry into the public councils a bias in favor of the Federal government.
Further, a spirit in favor of the States among members of Congress will infallibly exceed a spirit in favor of the Federal government among the legislatures of the States.
So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage.
Everyone knows most of the errors committed by the members of State legislatures proceed from the disposition of the members to sacrifice the comprehensive and permanent interest of their State to the particular and separate views of the counties or districts in which they reside.
And if such members cannot sufficiently enlarge their policy to embrace the collective welfare of their particular State, how will they make the aggregate prosperity of the United States and the dignity and respectability of its government the objects of their affections and consultations?
For the same reason members of State legislatures cannot attach themselves sufficiently to State and Federal objects, so too will members of Congress attach themselves too much to local objects.
The States will be to the Federal members what counties and towns are to the State members.
Measures will too often be decided according to their probable effect on the prejudices, interests, and pursuits of the governments and people of the individual States, rather than on the national prosperity and happiness.
What is the spirit that has in general characterized the proceedings of Congress?
Their journals – as well as the candid acknowledgments of those who have been seated there – inform us the members have but too frequently displayed the character of partisans of their respective States rather than impartial guardians of a common interest.
For every occasion when improper sacrifices were made of local considerations to the aggrandizement of the Federal government, the great interests of the nation have suffered a hundred losses from an undue attention to the local prejudices, interests, and views of the particular States.
These reflections are not intended to insinuate the new Federal government will not embrace a more enlarged plan of policy than the existing government has pursued, or that its views will be as confined as those of the State legislatures.
I imply only that the Federal government will partake sufficiently of the spirit of both State and Federal interests, and be disinclined to invade the rights of the individual States, or the prerogatives of their governments.
In short, the motives on the part of the State governments to augment their prerogatives by misappropriating Federal powers will not be overruled by reciprocal predispositions in the Federal members.
Even if the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the State governments would still have the advantage in the means of defeating such encroachments.
For instance, if a generally popular State action became effective immediately – and should not too grossly violate the oaths of the State officers – it would be enforced on the spot according to State rules, even though the act was unfriendly to the national government.
The opposition of the Federal government – or the interposition of Federal officers – would but inflame the zeal of all parties on the side of the State.
Federal opposition could neither prevent nor repair the evil, except by the use of means which must always be resorted to with reluctance and difficulty.
On the one hand, should an unwarrantable measure of the Federal government be unpopular in particular States (which would seldom fail to be the case) – or even a warrantable measure of the Federal government be so unpopular (which may sometimes be the case), the means of opposition to it are powerful and at hand:
(1) the disquietude of the People and their repugnance and possible refusal to cooperate with the officers of the United States,
(2) the frowns of the executive magistracy of the State, and
(3) the embarrassments created by legislative devices which would often be added on such occasions.
In a large State – particularly where the sentiments of several adjoining States happened to be in unison – these interests would present very serious obstructions the Federal government would hardly be willing to encounter.
On the other hand, ambitious encroachments of the Federal government on the authority of State governments would be signals of general alarm in all the States.
The same combinations that were produced previously by the dread of a foreign yoke would result from an apprehension of a Federal yoke.
Unless the projected Federal innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other.
Every government would espouse the common cause.
A correspondence would be opened, plans of resistance concerted, and one spirit would animate and conduct the whole.
What degree of madness could ever drive the Federal government to such an extremity?
In the contest with Great Britain, one part of the empire was employed against the other.
The more numerous part invaded the rights of the less numerous part.
The attempt was unjust and unwise, but it was not in speculation absolutely chimerical.
What would be the contest in the case we are supposing?
Who would be the parties?
A few Federal representatives of the People would be opposed to the People themselves.
More precisely, one set of Federal representatives would be contending against thirteen sets of state representatives, with the whole body of their common constituents on the side of the State governments.
Even if the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the State governments would still have the advantage in the means of defeating such encroachments.
The Right to Bear Arms and Maintain State and Local Governments Are the Best Defenses to Federal Tyranny
The only refuge left for those who prophesy the downfall of State governments is the visionary supposition that the Federal government may accumulate a military force for its projects of ambition.
These papers will have been useless indeed if it is now necessary now to disprove the reality of this danger.
To imagine the People and the States would elect a sufficiently uninterrupted succession of individuals ready to betray both; that the traitors should uniformly and systematically pursue some fixed plan for the extension of the military establishment throughout this period; that the State governments and the People of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to everyone more like the incoherent dreams of a delirious jealousy or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.
Extravagant as the supposition is, however, let it be made.
If we assume a regular army fully equal to the resources of the country is formed entirely at the devotion of the Federal government, then State governments – with the People on their side – would be able to repel the danger.
According to the best computation, the highest number to which a standing army can be carried in any country does not exceed one hundredth part of the whole number of souls, or one quarter of the number able to bear arms. In the United States, this proportion would not yield an army of more than 25 or 30 thousand men.
To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.
It is doubtful whether a militia thus circumstanced could ever be conquered by such a proportion of regular Federal troops.
Those who are best acquainted with the last successful resistance of this country against the British arms will be most inclined to deny the possibility of it.
First, unlike the People of almost every other nation, Americans have the advantage of being armed.
Further, the existence of State and local governments to which the People are attached – and by which the militia officers are appointed – forms a nearly insurmountable barrier against the enterprises of Federal ambition.
Consider the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear.
Their governments are afraid to trust their inhabitants with arms.
But even armed, it is uncertain whether this aid alone would allow them to shake off their yokes.
But if those inhabitants possessed the additional advantages of local governments chosen by them – governments which could collect the national will, direct the national force, and appoint militia officers attached both to them and to the militia – the throne of every tyranny in Europe would be speedily overturned notwithstanding the legions surrounding it.
The free and gallant citizens of America would be no less able would than these debased subjects of arbitrary power to defend their rights, particularly since our citizens already will be in actual possession of those rights.
Let us no longer insult the People of America with the supposition that they will ever reduce themselves to the use of force as a result of their blind and tame submission to a long train of insidious measures which must precede and produce it.
Either the mode in which the Federal government is constructed will render it sufficiently dependent on the People, or it will not.
If dependent on the People, it will be restrained thereby from forming schemes obnoxious to their constituents.
If independent of the People, the Federal government will not possess their confidence, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the People.
Either the mode in which the Federal government is constructed will render it sufficiently dependent on the People, or it will not. If dependent on the People, it will be restrained thereby from forming schemes obnoxious to their constituents. If independent of the People, the Federal government will not possess their confidence, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the People.
The powers to be lodged in the Federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the United States.
All those alarms sounded about of the eventual annihilation of State governments must be ascribed to the chimerical fears of their authors.
Madison