1787 Federalist 41 · Founding Made Plain

11787 Federalist No. 41

2General View of the Powers

3Conferred by The Constitution

4For the Independent Journal.

5MADISON

6To the People of the State of New York:

7THE Constitution proposed by the convention

8 may be considered under two general points of view.

9The FIRST relates to the sum or quantity of power

10 which it vests in the government,

11 including the restraints imposed on the States.

12The SECOND, to the particular structure

13 of the government,

14 and the distribution of this power

15 among its several branches.

16Under the FIRST view of the subject,

17 two important questions arise:

181) Whether any part of the powers transferred

19 to the general government

20 be unnecessary or improper?

212) Whether the entire mass of them

22 be dangerous to the portion of jurisdiction

23 left in the several States?

24Is the aggregate power of the general government

25 greater than ought to have been vested in it?

26This is the FIRST question.

27It cannot have escaped those

28 who have attended with candor

29 to the arguments employed

30 against the extensive powers of the government,

31 that the authors of them have very little considered

32 how far these powers were necessary means

33 of attaining a necessary end.

34They have chosen rather to dwell

35 on the inconveniences

36 which must be unavoidably blended

37 with all political advantages;

38 and on the possible abuses

39 which must be incident to every power or trust,

40 of which a beneficial use can be made.

41This method of handling the subject

42 cannot impose on the good sense

43 of the people of America.

44It may display the subtlety of the writer;

45 it may open a boundless field

46 for rhetoric and declamation;

47 it may inflame the passions of the unthinking,

48 and may confirm the prejudices of the misthinking:

49 but cool and candid people will at once reflect,

50 that the purest of human blessings

51 must have a portion of alloy in them;

52 that the choice must always be made,

53 if not of the lesser evil,

54 at least of the GREATER, not the PERFECT, good;

55 and that in every political institution,

56 a power to advance the public happiness

57 involves a discretion

58 which may be misapplied and abused.

59They will see, therefore,

60 that in all cases where power is to be conferred,

61 the point first to be decided is,

62 whether such a power be necessary

63 to the public good;

64 as the next will be,

65 in case of an affirmative decision,

66 to guard as effectually as possible

67 against a perversion of the power

68 to the public detriment.

69That we may form a correct judgment on this subject,

70 it will be proper to review the several powers

71 conferred on the government of the Union;

72 and that this may be the more conveniently done

73 they may be reduced into different classes

74 as they relate to the following different objects:

751) Security against foreign danger;

762) Regulation of the intercourse with foreign nations;

773) Maintenance of harmony

78 and proper intercourse among the States;

794) Certain miscellaneous objects of general utility;

805) Restraint of the States from certain injurious acts;

816) Provisions for giving due efficacy

82 to all these powers.

83The powers falling within the FIRST class

84 are those of declaring war

85 and granting letters of marque;

86 of providing armies and fleets;

87 of regulating and calling forth the militia;

88 of levying and borrowing money.

89Security against foreign danger

90 is one of the primitive objects of civil society.

91It is an avowed and essential object

92 of the American Union.

93The powers requisite for attaining it

94 must be effectually confided to the federal councils.

95Is the power of declaring war necessary?

96No man will answer this question in the negative.

97It would be superfluous, therefore,

98 to enter into a proof of the affirmative.

99The existing Confederation establishes this power

100 in the most ample form.

101Is the power of raising armies and equipping fleets

102 necessary?

103This is involved in the foregoing power.

104It is involved in the power of self-defense.

105But was it necessary to give an INDEFINITE POWER

106 of raising TROOPS, as well as providing fleets;

107 and of maintaining both in PEACE, as well as in war?

108The answer to these questions

109 has been too far anticipated in another place

110 to admit an extensive discussion of them

111 in this place.

112The answer indeed seems to be so obvious and conclusive

113 as scarcely to justify such a discussion in any place.

114With what color of propriety

115 could the force necessary for defense

116 be limited by those

117 who cannot limit the force of offense?

118If a federal Constitution could chain the ambition

119 or set bounds to the exertions of all other nations,

120 then indeed might it prudently chain the discretion

121 of its own government,

122 and set bounds to the exertions for its own safety.

123How could a readiness for war in time of peace

124 be safely prohibited,

125 unless we could prohibit, in like manner,

126 the preparations and establishments

127 of every hostile nation?

128The means of security can only be regulated

129 by the means and the danger of attack.

130They will, in fact, be ever determined by these rules,

131 and by no others.

132It is in vain to oppose constitutional barriers

133 to the impulse of self-preservation.

134It is worse than in vain;

135 because it plants in the Constitution itself

136 necessary usurpations of power,

137 every precedent of which

138 is a germ of unnecessary

139 and multiplied repetitions.

140If one nation maintains constantly a disciplined army,

141 ready for the service of ambition or revenge,

142 it obliges the most pacific nations

143 who may be within the reach of its enterprises

144 to take corresponding precautions.

145The fifteenth century was the unhappy epoch

146 of military establishments in the time of peace.

147They were introduced by Charles VII. of France.

148All Europe has followed,

149 or been forced into, the example.

150Had the example not been followed by other nations,

151 all Europe must long ago have worn the chains

152 of a universal monarch.

153Were every nation except France

154 now to disband its peace establishments,

155 the same event might follow.

156The veteran legions of Rome

157 were an overmatch for the undisciplined valor

158 of all other nations

159 and rendered her the mistress of the world.

160Not the less true is it,

161 that the liberties of Rome

162 proved the final victim to her military triumphs;

163 and that the liberties of Europe,

164 as far as they ever existed,

165 have, with few exceptions,

166 been the price of her military establishments.

167A standing force, therefore, is a dangerous,

168 at the same time that it may be a necessary, provision.

169On the smallest scale it has its inconveniences.

170On an extensive scale its consequences may be fatal.

171On any scale it is an object

172 of laudable circumspection and precaution.

173A wise nation will combine all these considerations;

174 and, whilst it does not rashly preclude itself

175 from any resource

176 which may become essential to its safety,

177 will exert all its prudence

178 in diminishing both the necessity and the danger

179 of resorting to one

180 which may be inauspicious to its liberties.

181The clearest marks of this prudence

182 are stamped on the proposed Constitution.

183The Union itself, which it cements and secures,

184 destroys every pretext for a military establishment

185 which could be dangerous.

186America united, with a handful of troops,

187 or without a single soldier,

188 exhibits a more forbidding posture to foreign ambition

189 than America disunited,

190 with a hundred thousand veterans

191 ready for combat.

192It was remarked, on a former occasion,

193 that the want of this pretext

194 had saved the liberties of one nation in Europe.

195Being rendered by her insular situation

196 and her maritime resources

197 impregnable to the armies of her neighbors,

198 the rulers of Great Britain have never been able,

199 by real or artificial dangers,

200 to cheat the public

201 into an extensive peace establishment.

202The distance of the United States

203 from the powerful nations of the world

204 gives them the same happy security.

205A dangerous establishment can never be necessary

206 or plausible,

207 so long as they continue a united people.

208But let it never, for a moment, be forgotten

209 that they are indebted for this advantage

210 to the Union alone.

211The moment of its dissolution

212 will be the date of a new order of things.

213The fears of the weaker,

214 or the ambition of the stronger States,

215 or Confederacies,

216 will set the same example in the New,

217 as Charles VII. did in the Old World.

218The example will be followed here

219 from the same motives

220 which produced universal imitation there.

221Instead of deriving from our situation

222 the precious advantage

223 which Great Britain has derived from hers,

224 the face of America will be but a copy

225 of that of the continent of Europe.

226It will present liberty everywhere crushed

227 between standing armies and perpetual taxes.

228The fortunes of disunited America

229 will be even more disastrous than those of Europe.

230The sources of evil in the latter

231 are confined to her own limits.

232No superior powers of another quarter of the globe

233 intrigue among her rival nations,

234 inflame their mutual animosities,

235 and render them the instruments

236 of foreign ambition, jealousy, and revenge.

237In America the miseries springing

238 from her internal jealousies, contentions, and wars,

239 would form a part only of her lot.

240A plentiful addition of evils

241 would have their source in that relation

242 in which Europe stands

243 to this quarter of the earth,

244 and which no other quarter of the earth

245 bears to Europe.

246This picture of the consequences of disunion

247 cannot be too highly colored,

248 or too often exhibited.

249Every man who loves peace,

250 every man who loves his country,

251 every man who loves liberty,

252 ought to have it ever before his eyes,

253 that he may cherish in his heart

254 a due attachment to the Union of America,

255 and be able to set a due value

256 on the means of preserving it.

257Next to the effectual establishment of the Union,

258 the best possible precaution

259 against danger from standing armies

260 is a limitation of the term

261 for which revenue may be appropriated

262 to their support.

263This precaution the Constitution has prudently added.

264I will not repeat here the observations

265 which I flatter myself have placed this subject

266 in a just and satisfactory light.

267But it may not be improper to take notice

268 of an argument against this part of the Constitution,

269 which has been drawn

270 from the policy and practice of Great Britain.

271It is said that the continuance of an army

272 in that kingdom

273 requires an annual vote of the legislature;

274 whereas the American Constitution

275 has lengthened this critical period to two years.

276This is the form in which the comparison

277 is usually stated to the public:

278 but is it a just form?

279Is it a fair comparison?

280Does the British Constitution restrain

281 the parliamentary discretion to one year?

282Does the American impose on the Congress

283 appropriations for two years?

284On the contrary,

285 it cannot be unknown to the authors of the fallacy

286 themselves,

287 that the British Constitution fixes no limit whatever

288 to the discretion of the legislature,

289 and that the American ties down the legislature

290 to two years,

291 as the longest admissible term.

292Had the argument from the British example

293 been truly stated, it would have stood thus:

294The term for which supplies may be appropriated

295 to the army establishment,

296 though unlimited by the British Constitution,

297 has nevertheless, in practice,

298 been limited by parliamentary discretion

299 to a single year.

300Now, if in Great Britain,

301 where the House of Commons is elected for seven years;

302 where so great a proportion of the members

303 are elected by so small a proportion of the people;

304 where the electors are so corrupted

305 by the representatives,

306 and the representatives so corrupted by the Crown,

307 the representative body can possess a power

308 to make appropriations to the army

309 for an indefinite term,

310 without desiring, or without daring,

311 to extend the term beyond a single year,

312 ought not suspicion herself to blush,

313 in pretending that the representatives

314 of the United States,

315 elected FREELY by the WHOLE BODY of the people,

316 every SECOND YEAR,

317 cannot be safely intrusted with the discretion

318 over such appropriations,

319 expressly limited to the short period

320 of TWO YEARS?

321A bad cause seldom fails to betray itself.

322Of this truth,

323 the management of the opposition

324 to the federal government

325 is an unvaried exemplification.

326But among all the blunders which have been committed,

327 none is more striking

328 than the attempt to enlist on that side

329 the prudent jealousy entertained by the people,

330 of standing armies.

331The attempt has awakened fully the public attention

332 to that important subject;

333 and has led to investigations

334 which must terminate

335 in a thorough and universal conviction,

336 not only that the Constitution

337 has provided the most effectual guards

338 against danger from that quarter,

339 but that nothing short of a Constitution

340 fully adequate to the national defense

341 and the preservation of the Union,

342 can save America from as many standing armies

343 as it may be split into States or Confederacies,

344 and from such a progressive augmentation,

345 of these establishments in each,

346 as will render them as burdensome

347 to the properties

348 and ominous to the liberties of the people,

349 as any establishment that can become necessary,

350 under a united and efficient government,

351 must be tolerable to the former

352 and safe to the latter.

353The palpable necessity of the power

354 to provide and maintain a navy

355 has protected that part of the Constitution

356 against a spirit of censure,

357 which has spared few other parts.

358It must, indeed, be numbered

359 among the greatest blessings of America,

360 that as her Union will be the only source

361 of her maritime strength,

362 so this will be a principal source of her security

363 against danger from abroad.

364In this respect our situation bears another likeness

365 to the insular advantage of Great Britain.

366The batteries most capable of repelling

367 foreign enterprises on our safety,

368 are happily such as can never be turned

369 by a perfidious government against our liberties.

370The inhabitants of the Atlantic frontier

371 are all of them deeply interested

372 in this provision for naval protection,

373 and if they have hitherto been suffered

374 to sleep quietly in their beds;

375 if their property has remained safe

376 against the predatory spirit

377 of licentious adventurers;

378 if their maritime towns have not yet been compelled

379 to ransom themselves from the terrors

380 of a conflagration,

381 by yielding to the exactions

382 of daring and sudden invaders,

383 these instances of good fortune

384 are not to be ascribed

385 to the capacity of the existing government

386 for the protection of those

387 from whom it claims allegiance,

388 but to causes that are fugitive and fallacious.

389If we except perhaps Virginia and Maryland,

390 which are peculiarly vulnerable

391 on their eastern frontiers,

392 no part of the Union ought to feel more anxiety

393 on this subject than New York.

394Her seacoast is extensive.

395A very important district of the State is an island.

396The State itself is penetrated by a large navigable river

397 for more than fifty leagues.

398The great emporium of its commerce,

399 the great reservoir of its wealth,

400 lies every moment at the mercy of events,

401 and may almost be regarded as a hostage

402 for ignominious compliances

403 with the dictates of a foreign enemy,

404 or even with the rapacious demands

405 of pirates and barbarians.

406Should a war be the result

407 of the precarious situation of European affairs,

408 and all the unruly passions attending it

409 be let loose on the ocean,

410 our escape from insults and depredations,

411 not only on that element,

412 but every part of the other bordering on it,

413 will be truly miraculous.

414In the present condition of America,

415 the States more immediately exposed to these calamities

416 have nothing to hope

417 from the phantom of a general government

418 which now exists;

419 and if their single resources were equal to the task

420 of fortifying themselves against the danger,

421 the object to be protected would be almost consumed

422 by the means of protecting them.

423The power of regulating and calling forth the militia

424 has been already sufficiently vindicated and explained.

425The power of levying and borrowing money,

426 being the sinew of that which is to be exerted

427 in the national defense,

428 is properly thrown into the same class with it.

429This power, also, has been examined already

430 with much attention,

431 and has, I trust, been clearly shown to be necessary,

432 both in the extent and form given to it

433 by the Constitution.

434I will address one additional reflection only

435 to those who contend

436 that the power ought to have been restrained

437 to external taxation

438 by which they mean,

439 taxes on articles imported from other countries.

440It cannot be doubted

441 that this will always be a valuable source of revenue;

442 that for a considerable time

443 it must be a principal source;

444 that at this moment it is an essential one.

445But we may form very mistaken ideas on this subject,

446 if we do not call to mind in our calculations,

447 that the extent of revenue drawn

448 from foreign commerce

449 must vary with the variations,

450 both in the extent and the kind of imports;

451 and that these variations do not correspond

452 with the progress of population,

453 which must be the general measure

454 of the public wants.

455As long as agriculture continues the sole field of labor,

456 the importation of manufactures must increase

457 as the consumers multiply.

458As soon as domestic manufactures are begun

459 by the hands not called for by agriculture,

460 the imported manufactures will decrease

461 as the numbers of people increase.

462In a more remote stage,

463 the imports may consist in a considerable part

464 of raw materials,

465 which will be wrought

466 into articles for exportation,

467 and will, therefore, require rather

468 the encouragement of bounties,

469 than to be loaded with discouraging duties.

470A system of government, meant for duration,

471 ought to contemplate these revolutions,

472 and be able to accommodate itself to them.

473Some, who have not denied the necessity

474 of the power of taxation,

475 have grounded a very fierce attack

476 against the Constitution,

477 on the language in which it is defined.

478It has been urged and echoed,

479 that the power

480 "to lay and collect taxes, duties, imposts,

481 and excises, to pay the debts,

482 and provide for the common defense

483 and general welfare of the United States,"

484 amounts to an unlimited commission

485 to exercise every power

486 which may be alleged to be necessary

487 for the common defense or general welfare.

488No stronger proof could be given

489 of the distress under which these writers labor

490 for objections,

491 than their stooping to such a misconstruction.

492Had no other enumeration or definition

493 of the powers of the Congress

494 been found in the Constitution,

495 than the general expressions just cited,

496 the authors of the objection

497 might have had some color for it;

498 though it would have been difficult

499 to find a reason

500 for so awkward a form of describing

501 an authority to legislate in all possible cases.

502A power to destroy the freedom of the press,

503 the trial by jury,

504 or even to regulate the course of descents,

505 or the forms of conveyances,

506 must be very singularly expressed

507 by the terms

508 "to raise money for the general welfare."

509But what color can the objection have,

510 when a specification of the objects

511 alluded to by these general terms

512 immediately follows,

513 and is not even separated

514 by a longer pause than a semicolon?

515If the different parts of the same instrument

516 ought to be so expounded,

517 as to give meaning to every part

518 which will bear it,

519 shall one part of the same sentence

520 be excluded altogether from a share

521 in the meaning;

522 and shall the more doubtful and indefinite terms

523 be retained in their full extent,

524 and the clear and precise expressions

525 be denied any signification whatsoever?

526For what purpose could the enumeration

527 of particular powers be inserted,

528 if these and all others were meant to be included

529 in the preceding general power?

530Nothing is more natural nor common

531 than first to use a general phrase,

532 and then to explain and qualify it

533 by a recital of particulars.

534But the idea of an enumeration of particulars

535 which neither explain nor qualify the general meaning,

536 and can have no other effect

537 than to confound and mislead,

538 is an absurdity,

539 which, as we are reduced to the dilemma

540 of charging either on the authors of the objection

541 or on the authors of the Constitution,

542 we must take the liberty of supposing,

543 had not its origin with the latter.

544The objection here is the more extraordinary,

545 as it appears that the language used by the convention

546 is a copy from the articles of Confederation.

547The objects of the Union among the States,

548 as described in article third, are

549 "their common defense,

550 security of their liberties,

551 and mutual and general welfare."

552The terms of article eighth are still more identical:

553 "All charges of war and all other expenses

554 that shall be incurred

555 for the common defense or general welfare,

556 and allowed by the United States in Congress,

557 shall be defrayed out of a common treasury,"

558 etc.

559A similar language again occurs in article ninth.

560Construe either of these articles

561 by the rules which would justify the construction

562 put on the new Constitution,

563 and they vest in the existing Congress

564 a power to legislate in all cases whatsoever.

565But what would have been thought of that assembly,

566 if, attaching themselves to these general expressions,

567 and disregarding the specifications

568 which ascertain and limit their import,

569 they had exercised an unlimited power

570 of providing for the common defense

571 and general welfare?

572I appeal to the objectors themselves,

573 whether they would in that case

574 have employed the same reasoning

575 in justification of Congress

576 as they now make use of against the convention.

577How difficult it is for error

578 to escape its own condemnation!

579PUBLIUS.