1787 Federalist 44 · Founding Made Plain

11787 Federalist No. 44

2Restrictions on the Authority

3of the Several States

4From the New York Packet.

5Friday, January 25, 1788.

6MADISON

7To the People of the State of New York:

8A FIFTH class of provisions

9 in favor of the federal authority

10 consists of the following restrictions

11 on the authority of the several States:

121. "No State shall enter into any treaty,

13 alliance, or confederation;

14 grant letters of marque and reprisal;

15 coin money; emit bills of credit;

16 make any thing but gold and silver

17 a legal tender in payment of debts;

18 pass any bill of attainder, ex-post-facto law,

19 or law impairing the obligation of contracts;

20 or grant any title of nobility."

21The prohibition against treaties, alliances,

22 and confederations

23 makes a part of the existing articles of Union;

24 and for reasons which need no explanation,

25 is copied into the new Constitution.

26The prohibition of letters of marque

27 is another part of the old system,

28 but is somewhat extended in the new.

29According to the former,

30 letters of marque could be granted by the States

31 after a declaration of war;

32 according to the latter,

33 these licenses must be obtained,

34 as well during war as previous to its declaration,

35 from the government of the United States.

36This alteration is fully justified

37 by the advantage of uniformity

38 in all points which relate to foreign powers;

39 and of immediate responsibility to the nation

40 in all those for whose conduct

41 the nation itself is to be responsible.

42The right of coining money,

43 which is here taken from the States,

44 was left in their hands by the Confederation,

45 as a concurrent right with that of Congress,

46 under an exception in favor

47 of the exclusive right of Congress

48 to regulate the alloy and value.

49In this instance, also,

50 the new provision is an improvement on the old.

51Whilst the alloy and value depended

52 on the general authority,

53 a right of coinage in the particular States

54 could have no other effect

55 than to multiply expensive mints

56 and diversify the forms and weights

57 of the circulating pieces.

58The latter inconveniency defeats one purpose

59 for which the power was originally submitted

60 to the federal head;

61 and as far as the former might prevent

62 an inconvenient remittance of gold and silver

63 to the central mint for recoinage,

64 the end can be as well attained

65 by local mints established

66 under the general authority.

67The extension of the prohibition to bills of credit

68 must give pleasure to every citizen,

69 in proportion to his love of justice

70 and his knowledge of the true springs

71 of public prosperity.

72The loss which America has sustained since the peace,

73 from the pestilent effects of paper money

74 on the necessary confidence between man and man,

75 on the necessary confidence in the public councils,

76 on the industry and morals of the people,

77 and on the character of republican government,

78 constitutes an enormous debt against the States

79 chargeable with this unadvised measure,

80 which must long remain unsatisfied;

81 or rather an accumulation of guilt,

82 which can be expiated no otherwise

83 than by a voluntary sacrifice

84 on the altar of justice,

85 of the power which has been the instrument of it.

86In addition to these persuasive considerations,

87 it may be observed,

88 that the same reasons which show the necessity

89 of denying to the States

90 the power of regulating coin,

91 prove with equal force

92 that they ought not to be at liberty

93 to substitute a paper medium in the place of coin.

94Had every State a right to regulate the value of its coin,

95 there might be as many different currencies as States,

96 and thus the intercourse among them would be impeded;

97 retrospective alterations in its value might be made,

98 and thus the citizens of other States be injured,

99 and animosities be kindled

100 among the States themselves.

101The subjects of foreign powers

102 might suffer from the same cause,

103 and hence the Union be discredited and embroiled

104 by the indiscretion of a single member.

105No one of these mischiefs is less incident

106 to a power in the States to emit paper money,

107 than to coin gold or silver.

108The power to make any thing but gold and silver

109 a tender in payment of debts,

110 is withdrawn from the States,

111 on the same principle

112 with that of issuing a paper currency.

113Bills of attainder, ex-post-facto laws,

114 and laws impairing the obligation of contracts,

115 are contrary to the first principles

116 of the social compact,

117 and to every principle of sound legislation.

118The two former are expressly prohibited

119 by the declarations prefixed

120 to some of the State constitutions,

121 and all of them are prohibited

122 by the spirit and scope

123 of these fundamental charters.

124Our own experience has taught us, nevertheless,

125 that additional fences against these dangers

126 ought not to be omitted.

127Very properly, therefore,

128 have the convention added this constitutional bulwark

129 in favor of personal security and private rights;

130 and I am much deceived if they have not, in so doing,

131 as faithfully consulted the genuine sentiments

132 as the undoubted interests of their constituents.

133The sober people of America are weary

134 of the fluctuating policy

135 which has directed the public councils.

136They have seen with regret and indignation

137 that sudden changes and legislative interferences,

138 in cases affecting personal rights,

139 become jobs in the hands

140 of enterprising and influential speculators,

141 and snares to the more-industrious

142 and lessinformed part of the community.

143They have seen, too,

144 that one legislative interference

145 is but the first link

146 of a long chain of repetitions,

147 every subsequent interference

148 being naturally produced

149 by the effects of the preceding.

150They very rightly infer, therefore,

151 that some thorough reform is wanting,

152 which will banish speculations on public measures,

153 inspire a general prudence and industry,

154 and give a regular course

155 to the business of society.

156The prohibition with respect to titles of nobility

157 is copied from the articles of Confederation

158 and needs no comment.

1592. "No State shall, without the consent of the Congress,

160 lay any imposts or duties on imports or exports,

161 except what may be absolutely necessary

162 for executing its inspection laws,

163 and the net produce of all duties and imposts

164 laid by any State on imports or exports,

165 shall be for the use of the treasury

166 of the United States;

167 and all such laws shall be subject

168 to the revision and control of the Congress.

169No State shall, without the consent of Congress,

170 lay any duty on tonnage,

171 keep troops or ships of war in time of peace,

172 enter into any agreement or compact

173 with another State, or with a foreign power,

174 or engage in war unless actually invaded,

175 or in such imminent danger

176 as will not admit of delay."

177The restraint on the power of the States

178 over imports and exports

179 is enforced by all the arguments

180 which prove the necessity

181 of submitting the regulation of trade

182 to the federal councils.

183It is needless, therefore, to remark further

184 on this head,

185 than that the manner

186 in which the restraint is qualified

187 seems well calculated at once

188 to secure to the States a reasonable discretion

189 in providing for the conveniency

190 of their imports and exports,

191 and to the United States a reasonable check

192 against the abuse of this discretion.

193The remaining particulars of this clause

194 fall within reasonings

195 which are either so obvious,

196 or have been so fully developed,

197 that they may be passed over without remark.

198The SIXTH and last class consists

199 of the several powers and provisions

200 by which efficacy is given to all the rest.

2011. Of these the first is, the

202 "power to make all laws

203 which shall be necessary and proper

204 for carrying into execution the foregoing powers,

205 and all other powers vested by this Constitution

206 in the government of the United States,

207 or in any department or officer thereof."

208Few parts of the Constitution have been assailed

209 with more intemperance than this;

210 yet on a fair investigation of it,

211 no part can appear more completely invulnerable.

212Without the SUBSTANCE of this power,

213 the whole Constitution would be a dead letter.

214Those who object to the article, therefore,

215 as a part of the Constitution,

216 can only mean that the FORM

217 of the provision is improper.

218But have they considered

219 whether a better form could have been substituted?

220There are four other possible methods

221 which the Constitution might have taken

222 on this subject.

223They might have copied the second article

224 of the existing Confederation,

225 which would have prohibited the exercise

226 of any power not EXPRESSLY delegated;

227 they might have attempted a positive enumeration

228 of the powers comprehended

229 under the general terms "necessary and proper";

230 they might have attempted a negative enumeration

231 of them,

232 by specifying the powers excepted

233 from the general definition;

234 they might have been altogether silent on the subject,

235 leaving these necessary and proper powers

236 to construction and inference.

237Had the convention taken the first method

238 of adopting the second article of Confederation,

239 it is evident that the new Congress

240 would be continually exposed,

241 as their predecessors have been,

242 to the alternative of construing

243 the term "EXPRESSLY"

244 with so much rigor,

245 as to disarm the government

246 of all real authority whatever,

247 or with so much latitude

248 as to destroy altogether

249 the force of the restriction.

250It would be easy to show, if it were necessary,

251 that no important power,

252 delegated by the articles of Confederation,

253 has been or can be executed by Congress,

254 without recurring more or less

255 to the doctrine of CONSTRUCTION or IMPLICATION.

256As the powers delegated under the new system

257 are more extensive,

258 the government which is to administer it

259 would find itself still more distressed

260 with the alternative

261 of betraying the public interests by doing nothing,

262 or of violating the Constitution

263 by exercising powers

264 indispensably necessary and proper,

265 but, at the same time, not EXPRESSLY granted.

266Had the convention attempted a positive enumeration

267 of the powers necessary and proper

268 for carrying their other powers into effect,

269 the attempt would have involved

270 a complete digest of laws

271 on every subject to which the Constitution relates;

272 accommodated too,

273 not only to the existing state of things,

274 but to all the possible changes

275 which futurity may produce;

276 for in every new application of a general power,

277 the PARTICULAR POWERS,

278 which are the means of attaining the OBJECT

279 of the general power,

280 must always necessarily vary with that object,

281 and be often properly varied

282 whilst the object remains the same.

283Had they attempted to enumerate the particular powers

284 or means not necessary or proper

285 for carrying the general powers into execution,

286 the task would have been no less chimerical;

287 and would have been liable to this further objection,

288 that every defect in the enumeration

289 would have been equivalent

290 to a positive grant of authority.

291If, to avoid this consequence,

292 they had attempted a partial enumeration

293 of the exceptions,

294 and described the residue by the general terms,

295 NOT NECESSARY OR PROPER,

296 it must have happened

297 that the enumeration would comprehend

298 a few of the excepted powers only;

299 that these would be such

300 as would be least likely

301 to be assumed or tolerated,

302 because the enumeration would of course select

303 such as would be least necessary or proper;

304 and that the unnecessary and improper powers

305 included in the residuum,

306 would be less forcibly excepted,

307 than if no partial enumeration had been made.

308Had the Constitution been silent on this head,

309 there can be no doubt

310 that all the particular powers requisite

311 as means of executing the general powers

312 would have resulted to the government,

313 by unavoidable implication.

314No axiom is more clearly established

315 in law, or in reason,

316 than that wherever the end is required,

317 the means are authorized;

318 wherever a general power to do a thing is given,

319 every particular power necessary for doing it

320 is included.

321Had this last method, therefore,

322 been pursued by the convention,

323 every objection now urged against their plan

324 would remain in all its plausibility;

325 and the real inconveniency would be incurred

326 of not removing a pretext

327 which may be seized on critical occasions

328 for drawing into question

329 the essential powers of the Union.

330If it be asked what is to be the consequence,

331 in case the Congress shall misconstrue

332 this part of the Constitution,

333 and exercise powers not warranted

334 by its true meaning,

335 I answer, the same as if they should misconstrue

336 or enlarge any other power vested in them;

337 as if the general power

338 had been reduced to particulars,

339 and any one of these were to be violated;

340 the same, in short,

341 as if the State legislatures should violate

342 the irrespective constitutional authorities.

343In the first instance,

344 the success of the usurpation will depend

345 on the executive and judiciary departments,

346 which are to expound and give effect

347 to the legislative acts;

348 and in the last resort a remedy must be obtained

349 from the people

350 who can, by the election

351 of more faithful representatives,

352 annul the acts of the usurpers.

353The truth is,

354 that this ultimate redress may be more confided in

355 against unconstitutional acts of the federal

356 than of the State legislatures,

357 for this plain reason,

358 that as every such act of the former

359 will be an invasion of the rights of the latter,

360 these will be ever ready to mark the innovation,

361 to sound the alarm to the people,

362 and to exert their local influence

363 in effecting a change of federal representatives.

364There being no such intermediate body

365 between the State legislatures and the people

366 interested in watching the conduct of the former,

367 violations of the State constitutions

368 are more likely to remain

369 unnoticed and unredressed.

3702. "This Constitution and the laws of the United States

371 which shall be made in pursuance thereof,

372 and all treaties made, or which shall be made,

373 under the authority of the United States,

374 shall be the supreme law of the land,

375 and the judges in every State shall be bound thereby,

376 any thing in the constitution or laws of any State

377 to the contrary notwithstanding."

378The indiscreet zeal of the adversaries

379 to the Constitution

380 has betrayed them into an attack

381 on this part of it also,

382 without which it would have been

383 evidently and radically defective.

384To be fully sensible of this,

385 we need only suppose for a moment

386 that the supremacy of the State constitutions

387 had been left complete

388 by a saving clause in their favor.

389In the first place,

390 as these constitutions invest the State legislatures

391 with absolute sovereignty,

392 in all cases not excepted

393 by the existing articles of Confederation,

394 all the authorities contained

395 in the proposed Constitution,

396 so far as they exceed those enumerated

397 in the Confederation,

398 would have been annulled,

399 and the new Congress would have been reduced

400 to the same impotent condition

401 with their predecessors.

402In the next place,

403 as the constitutions of some of the States

404 do not even expressly and fully recognize

405 the existing powers of the Confederacy,

406 an express saving of the supremacy of the former would,

407 in such States,

408 have brought into question every power

409 contained in the proposed Constitution.

410In the third place,

411 as the constitutions of the States

412 differ much from each other,

413 it might happen that a treaty or national law,

414 of great and equal importance to the States,

415 would interfere with some

416 and not with other constitutions,

417 and would consequently be valid

418 in some of the States,

419 at the same time that it would have no effect

420 in others.

421In fine, the world would have seen, for the first time,

422 a system of government founded

423 on an inversion of the fundamental principles

424 of all government;

425 it would have seen the authority of the whole society

426 every where subordinate

427 to the authority of the parts;

428 it would have seen a monster,

429 in which the head was under the direction

430 of the members.

4313. "The Senators and Representatives,

432 and the members of the several State legislatures,

433 and all executive and judicial officers,

434 both of the United States and the several States,

435 shall be bound by oath or affirmation

436 to support this Constitution."

437It has been asked why it was thought necessary,

438 that the State magistracy should be bound

439 to support the federal Constitution,

440 and unnecessary that a like oath should be imposed

441 on the officers of the United States,

442 in favor of the State constitutions.

443Several reasons might be assigned for the distinction.

444I content myself with one,

445 which is obvious and conclusive.

446The members of the federal government

447 will have no agency

448 in carrying the State constitutions into effect.

449The members and officers of the State governments,

450 on the contrary,

451 will have an essential agency

452 in giving effect to the federal Constitution.

453The election of the President and Senate will depend,

454 in all cases,

455 on the legislatures of the several States.

456And the election of the House of Representatives

457 will equally depend on the same authority

458 in the first instance;

459 and will, probably, forever be conducted

460 by the officers, and according to the laws,

461 of the States.

4624. Among the provisions

463 for giving efficacy to the federal powers

464 might be added those

465 which belong to the executive

466 and judiciary departments:

467 but as these are reserved

468 for particular examination in another place,

469 I pass them over in this.

470We have now reviewed, in detail,

471 all the articles composing the sum or quantity of power

472 delegated by the proposed Constitution

473 to the federal government,

474 and are brought to this undeniable conclusion,

475 that no part of the power

476 is unnecessary or improper

477 for accomplishing the necessary

478 objects of the Union.

479The question, therefore,

480 whether this amount of power shall be granted or not,

481 resolves itself into another question,

482 whether or not a government commensurate

483 to the exigencies of the Union

484 shall be established;

485 or, in other words,

486 whether the Union itself shall be preserved.

487PUBLIUS.