1787 Federalist 43 · Founding Made Plain

11787 Federalist No. 43

2The Same Subject Continued

3(The Powers Conferred by the Constitution

4Further Considered)

5For the Independent Journal.

6MADISON

7To the People of the State of New York:

8THE FOURTH class comprises

9 the following miscellaneous powers:

101) A power

11 "to promote the progress of science and useful arts,

12 by securing, for a limited time,

13 to authors and inventors,

14 the exclusive right

15 to their respective writings and discoveries."

16The utility of this power will scarcely be questioned.

17The copyright of authors has been solemnly adjudged,

18 in Great Britain, to be a right of common law.

19The right to useful inventions

20 seems with equal reason to belong to the inventors.

21The public good fully coincides in both cases

22 with the claims of individuals.

23The States cannot separately make effectual provisions

24 for either of the cases,

25 and most of them have anticipated

26 the decision of this point,

27 by laws passed at the instance of Congress.

282) "To exercise exclusive legislation,

29 in all cases whatsoever,

30 over such district (not exceeding ten miles square)

31 as may, by cession of particular States

32 and the acceptance of Congress,

33 become the seat of the government

34 of the United States;

35 and to exercise like authority over all places

36 purchased by the consent of the legislatures

37 of the States in which the same shall be,

38 for the erection of forts, magazines, arsenals,

39 dockyards, and other needful buildings."

40The indispensable necessity of complete authority

41 at the seat of government,

42 carries its own evidence with it.

43It is a power exercised by every legislature

44 of the Union, I might say of the world,

45 by virtue of its general supremacy.

46Without it,

47 not only the public authority might be insulted

48 and its proceedings interrupted with impunity;

49 but a dependence of the members

50 of the general government

51 on the State comprehending

52 the seat of the government,

53 for protection in the exercise of their duty,

54 might bring on the national councils

55 an imputation of awe or influence,

56 equally dishonorable to the government

57 and dissatisfactory to the other members

58 of the Confederacy.

59This consideration has the more weight,

60 as the gradual accumulation of public improvements

61 at the stationary residence of the government

62 would be both too great a public pledge

63 to be left in the hands of a single State,

64 and would create so many obstacles

65 to a removal of the government,

66 as still further to abridge

67 its necessary independence.

68The extent of this federal district

69 is sufficiently circumscribed

70 to satisfy every jealousy of an opposite nature.

71And as it is to be appropriated to this use

72 with the consent of the State ceding it;

73 as the State will no doubt provide in the compact

74 for the rights and the consent

75 of the citizens inhabiting it;

76 as the inhabitants will find sufficient inducements

77 of interest to become willing parties

78 to the cession;

79 as they will have had their voice

80 in the election of the government

81 which is to exercise authority over them;

82 as a municipal legislature for local purposes,

83 derived from their own suffrages,

84 will of course be allowed them;

85 and as the authority of the legislature of the State,

86 and of the inhabitants of the ceded part of it,

87 to concur in the cession,

88 will be derived from the whole people of the State

89 in their adoption of the Constitution,

90 every imaginable objection seems to be obviated.

91The necessity of a like authority

92 over forts, magazines, etc.,

93 established by the general government,

94 is not less evident.

95The public money expended on such places,

96 and the public property deposited in them,

97 requires that they should be exempt

98 from the authority of the particular State.

99Nor would it be proper

100 for the places on which the security

101 of the entire Union may depend,

102 to be in any degree dependent

103 on a particular member of it.

104All objections and scruples are here also obviated,

105 by requiring the concurrence of the States concerned,

106 in every such establishment.

1073) "To declare the punishment of treason,

108 but no attainder of treason

109 shall work corruption of blood, or forfeiture,

110 except during the life of the person attained."

111As treason may be committed against the United States,

112 the authority of the United States

113 ought to be enabled to punish it.

114But as new-fangled and artificial treasons

115 have been the great engines

116 by which violent factions,

117 the natural offspring of free government,

118 have usually wreaked their alternate malignity

119 on each other,

120 the convention have, with great judgment,

121 opposed a barrier to this peculiar danger,

122 by inserting a constitutional definition

123 of the crime,

124 fixing the proof necessary for conviction of it,

125 and restraining the Congress,

126 even in punishing it,

127 from extending the consequences of guilt

128 beyond the person of its author.

1294) "To admit new States into the Union;

130 but no new State shall be formed or erected

131 within the jurisdiction of any other State;

132 nor any State be formed

133 by the junction of two or more States,

134 or parts of States,

135 without the consent of the legislatures

136 of the States concerned,

137 as well as of the Congress."

138In the articles of Confederation,

139 no provision is found on this important subject.

140Canada was to be admitted of right,

141 on her joining in the measures of the United States;

142 and the other COLONIES,

143 by which were evidently meant

144 the other British colonies,

145 at the discretion of nine States.

146The eventual establishment of NEW STATES

147 seems to have been overlooked

148 by the compilers of that instrument.

149We have seen the inconvenience of this omission,

150 and the assumption of power

151 into which Congress have been led by it.

152With great propriety, therefore,

153 has the new system supplied the defect.

154The general precaution,

155 that no new States shall be formed,

156 without the concurrence of the federal authority,

157 and that of the States concerned,

158 is consonant to the principles

159 which ought to govern such transactions.

160The particular precaution

161 against the erection of new States,

162 by the partition of a State without its consent,

163 quiets the jealousy of the larger States;

164 as that of the smaller is quieted

165 by a like precaution,

166 against a junction of States without their consent.

1675) "To dispose of and make all needful rules

168 and regulations respecting the territory

169 or other property belonging to the United States,

170 with a proviso,

171 that nothing in the Constitution

172 shall be so construed

173 as to prejudice any claims of the United States,

174 or of any particular State."

175This is a power of very great importance,

176 and required by considerations similar

177 to those which show the propriety of the former.

178The proviso annexed is proper in itself,

179 and was probably rendered absolutely necessary

180 by jealousies and questions

181 concerning the Western territory

182 sufficiently known to the public.

1836) "To guarantee to every State in the Union

184 a republican form of government;

185 to protect each of them against invasion;

186 and on application of the legislature,

187 or of the executive

188 (when the legislature cannot be convened),

189 against domestic violence."

190In a confederacy founded on republican principles,

191 and composed of republican members,

192 the superintending government ought clearly

193 to possess authority to defend the system

194 against aristocratic or monarchial innovations.

195The more intimate the nature of such a union may be,

196 the greater interest have the members

197 in the political institutions of each other;

198 and the greater right to insist

199 that the forms of government

200 under which the compact was entered into

201 should be SUBSTANTIALLY maintained.

202But a right implies a remedy;

203 and where else could the remedy be deposited,

204 than where it is deposited by the Constitution?

205Governments of dissimilar principles and forms

206 have been found less adapted

207 to a federal coalition of any sort,

208 than those of a kindred nature.

209"As the confederate republic of Germany,"

210 says Montesquieu,

211 "consists of free cities and petty states,

212 subject to different princes,

213 experience shows us that it is more imperfect

214 than that of Holland and Switzerland."

215"Greece was undone," he adds,

216 "as soon as the king of Macedon

217 obtained a seat among the Amphictyons."

218In the latter case, no doubt,

219 the disproportionate force,

220 as well as the monarchical form,

221 of the new confederate,

222 had its share of influence on the events.

223It may possibly be asked,

224 what need there could be of such a precaution,

225 and whether it may not become a pretext

226 for alterations in the State governments,

227 without the concurrence of the States themselves.

228These questions admit of ready answers.

229If the interposition of the general government

230 should not be needed,

231 the provision for such an event

232 will be a harmless superfluity only

233 in the Constitution.

234But who can say what experiments

235 may be produced by the caprice of particular States,

236 by the ambition of enterprising leaders,

237 or by the intrigues and influence of foreign powers?

238To the second question it may be answered,

239 that if the general government should interpose

240 by virtue of this constitutional authority,

241 it will be, of course, bound to pursue the authority.

242But the authority extends no further

243 than to a GUARANTY of a republican form of government,

244 which supposes a pre-existing government

245 of the form which is to be guaranteed.

246As long, therefore,

247 as the existing republican forms

248 are continued by the States,

249 they are guaranteed by the federal Constitution.

250Whenever the States may choose

251 to substitute other republican forms,

252 they have a right to do so,

253 and to claim the federal guaranty for the latter.

254The only restriction imposed on them is,

255 that they shall not exchange republican

256 for antirepublican Constitutions;

257 a restriction which, it is presumed,

258 will hardly be considered as a grievance.

259A protection against invasion

260 is due from every society to the parts composing it.

261The latitude of the expression here used

262 seems to secure each State,

263 not only against foreign hostility,

264 but against ambitious or vindictive enterprises

265 of its more powerful neighbors.

266The history, both of ancient and modern confederacies,

267 proves that the weaker members of the union

268 ought not to be insensible

269 to the policy of this article.

270Protection against domestic violence

271 is added with equal propriety.

272It has been remarked,

273 that even among the Swiss cantons,

274 which, properly speaking,

275 are not under one government,

276 provision is made for this object;

277 and the history of that league informs us

278 that mutual aid is frequently claimed and afforded;

279 and as well by the most democratic,

280 as the other cantons.

281A recent and well-known event among ourselves

282 has warned us to be prepared

283 for emergencies of a like nature.

284At first view, it might seem not to square

285 with the republican theory, to suppose,

286 either that a majority have not the right,

287 or that a minority will have the force,

288 to subvert a government;

289 and consequently,

290 that the federal interposition

291 can never be required,

292 but when it would be improper.

293But theoretic reasoning,

294 in this as in most other cases,

295 must be qualified by the lessons of practice.

296Why may not illicit combinations,

297 for purposes of violence,

298 be formed as well by a majority of a State,

299 especially a small State

300 as by a majority of a county,

301 or a district of the same State;

302 and if the authority of the State ought,

303 in the latter case,

304 to protect the local magistracy,

305 ought not the federal authority, in the former,

306 to support the State authority?

307Besides, there are certain parts

308 of the State constitutions

309 which are so interwoven with the federal Constitution,

310 that a violent blow cannot be given to the one

311 without communicating the wound to the other.

312Insurrections in a State

313 will rarely induce a federal interposition,

314 unless the number concerned in them

315 bear some proportion to the friends of government.

316It will be much better

317 that the violence in such cases

318 should be repressed by the superintending power,

319 than that the majority should be left

320 to maintain their cause

321 by a bloody and obstinate contest.

322The existence of a right to interpose,

323 will generally prevent the necessity of exerting it.

324Is it true that force and right

325 are necessarily on the same side

326 in republican governments?

327May not the minor party possess

328 such a superiority of pecuniary resources,

329 of military talents and experience,

330 or of secret succors from foreign powers,

331 as will render it superior also

332 in an appeal to the sword?

333May not a more compact and advantageous position

334 turn the scale on the same side,

335 against a superior number so situated

336 as to be less capable

337 of a prompt and collected exertion

338 of its strength?

339Nothing can be more chimerical

340 than to imagine that in a trial of actual force,

341 victory may be calculated by the rules

342 which prevail in a census of the inhabitants,

343 or which determine the event of an election!

344May it not happen, in fine,

345 that the minority of CITIZENS

346 may become a majority of PERSONS,

347 by the accession of alien residents,

348 of a casual concourse of adventurers,

349 or of those whom the constitution of the State

350 has not admitted to the rights of suffrage?

351I take no notice of an unhappy species of population

352 abounding in some of the States,

353 who, during the calm of regular government,

354 are sunk below the level of men;

355 but who, in the tempestuous scenes of civil violence,

356 may emerge into the human character,

357 and give a superiority of strength

358 to any party with which they

359 may associate themselves.

360In cases where it may be doubtful

361 on which side justice lies,

362 what better umpires could be desired

363 by two violent factions,

364 flying to arms, and tearing a State to pieces,

365 than the representatives of confederate States,

366 not heated by the local flame?

367To the impartiality of judges,

368 they would unite the affection of friends.

369Happy would it be

370 if such a remedy for its infirmities

371 could be enjoyed by all free governments;

372 if a project equally effectual could be established

373 for the universal peace of mankind!

374Should it be asked,

375 what is to be the redress for an insurrection

376 pervading all the States,

377 and comprising a superiority of the entire force,

378 though not a constitutional right?

379the answer must be,

380 that such a case,

381 as it would be without the compass

382 of human remedies,

383 so it is fortunately not within the compass

384 of human probability;

385 and that it is a sufficient recommendation

386 of the federal Constitution,

387 that it diminishes the risk of a calamity

388 for which no possible constitution

389 can provide a cure.

390Among the advantages of a confederate republic

391 enumerated by Montesquieu, an important one is,

392 "that should a popular insurrection happen

393 in one of the States,

394 the others are able to quell it.

395Should abuses creep into one part,

396 they are reformed by those that remain sound."

3977) "To consider all debts contracted,

398 and engagements entered into,

399 before the adoption of this Constitution,

400 as being no less valid against the United States,

401 under this Constitution,

402 than under the Confederation."

403This can only be considered

404 as a declaratory proposition;

405 and may have been inserted, among other reasons,

406 for the satisfaction of the foreign creditors

407 of the United States,

408 who cannot be strangers

409 to the pretended doctrine,

410 that a change in the political form

411 of civil society

412 has the magical effect

413 of dissolving its moral obligations.

414Among the lesser criticisms

415 which have been exercised on the Constitution,

416 it has been remarked

417 that the validity of engagements

418 ought to have been asserted

419 in favor of the United States,

420 as well as against them;

421 and in the spirit

422 which usually characterizes little critics,

423 the omission has been transformed and magnified

424 into a plot against the national rights.

425The authors of this discovery may be told,

426 what few others need to be informed of,

427 that as engagements are in their nature reciprocal,

428 an assertion of their validity on one side,

429 necessarily involves a validity on the other side;

430 and that as the article is merely declaratory,

431 the establishment of the principle in one case

432 is sufficient for every case.

433They may be further told,

434 that every constitution must limit its precautions

435 to dangers that are not altogether imaginary;

436 and that no real danger can exist

437 that the government would DARE,

438 with, or even without,

439 this constitutional declaration before it,

440 to remit the debts justly due to the public,

441 on the pretext here condemned.

4428) "To provide for amendments to be ratified

443 by three fourths of the States

444 under two exceptions only."

445That useful alterations will be suggested by experience,

446 could not but be foreseen.

447It was requisite, therefore,

448 that a mode for introducing them should be provided.

449The mode preferred by the convention

450 seems to be stamped with every mark of propriety.

451It guards equally against that extreme facility,

452 which would render the Constitution too mutable;

453 and that extreme difficulty,

454 which might perpetuate its discovered faults.

455It, moreover, equally enables

456 the general and the State governments

457 to originate the amendment of errors,

458 as they may be pointed out

459 by the experience on one side, or on the other.

460The exception in favor of the equality of suffrage

461 in the Senate,

462 was probably meant as a palladium

463 to the residuary sovereignty of the States,

464 implied and secured by that principle

465 of representation

466 in one branch of the legislature;

467 and was probably insisted on

468 by the States particularly attached

469 to that equality.

470The other exception must have been admitted

471 on the same considerations

472 which produced the privilege defended by it.

4739) "The ratification of the conventions of nine States

474 shall be sufficient for the establishment

475 of this Constitution

476 between the States, ratifying the same."

477This article speaks for itself.

478The express authority of the people alone

479 could give due validity to the Constitution.

480To have required the unanimous ratification

481 of the thirteen States,

482 would have subjected the essential interests

483 of the whole

484 to the caprice or corruption of a single member.

485It would have marked a want of foresight

486 in the convention,

487 which our own experience

488 would have rendered inexcusable.

489Two questions of a very delicate nature

490 present themselves on this occasion:

4911. On what principle the Confederation,

492 which stands in the solemn form

493 of a compact among the States,

494 can be superseded

495 without the unanimous consent of the parties to it?

4962. What relation is to subsist

497 between the nine or more States

498 ratifying the Constitution,

499 and the remaining few

500 who do not become parties to it?

501The first question is answered at once

502 by recurring to the absolute necessity of the case;

503 to the great principle of self-preservation;

504 to the transcendent law of nature and of nature's God,

505 which declares that the safety and happiness

506 of society

507 are the objects

508 at which all political institutions aim,

509 and to which all such institutions

510 must be sacrificed.

511PERHAPS, also, an answer may be found

512 without searching beyond the principles

513 of the compact itself.

514It has been heretofore noted

515 among the defects of the Confederation,

516 that in many of the States

517 it had received no higher sanction

518 than a mere legislative ratification.

519The principle of reciprocality seems to require

520 that its obligation on the other States

521 should be reduced to the same standard.

522A compact between independent sovereigns,

523 founded on ordinary acts of legislative authority,

524 can pretend to no higher validity

525 than a league or treaty between the parties.

526It is an established doctrine on the subject of treaties,

527 that all the articles are mutually conditions

528 of each other;

529 that a breach of any one article

530 is a breach of the whole treaty;

531 and that a breach, committed by either of the parties,

532 absolves the others,

533 and authorizes them, if they please,

534 to pronounce the compact violated and void.

535Should it unhappily be necessary

536 to appeal to these delicate truths

537 for a justification

538 for dispensing with the consent

539 of particular States

540 to a dissolution of the federal pact,

541 will not the complaining parties find it

542 a difficult task

543 to answer the MULTIPLIED and IMPORTANT infractions

544 with which they may be confronted?

545The time has been when it was incumbent on us all

546 to veil the ideas which this paragraph exhibits.

547The scene is now changed,

548 and with it the part which the same motives dictate.

549The second question is not less delicate;

550 and the flattering prospect

551 of its being merely hypothetical

552 forbids an overcurious discussion of it.

553It is one of those cases

554 which must be left to provide for itself.

555In general, it may be observed,

556 that although no political relation can subsist

557 between the assenting and dissenting States,

558 yet the moral relations will remain uncancelled.

559The claims of justice,

560 both on one side and on the other,

561 will be in force, and must be fulfilled;

562 the rights of humanity must in all cases

563 be duly and mutually respected;

564 whilst considerations of a common interest,

565 and, above all,

566 the remembrance of the endearing scenes

567 which are past,

568 and the anticipation of a speedy triumph

569 over the obstacles to reunion,

570 will, it is hoped,

571 not urge in vain

572 MODERATION on one side,

573 and PRUDENCE on the other.

574PUBLIUS.