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