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