FEDERALIST No. 41
General View of the Powers Conferred by The Constitution
For the Independent Journal.
Saturday, January 19, 1788
MADISON
To the People of the State of New York:
THE Constitution proposed by the convention may be considered under two
general points of view. The FIRST relates to the sum or quantity of
power which it vests in the government, including the restraints imposed
on the States. The SECOND, to the particular structure of the
government, and the distribution of this power among its several
branches.
Under the FIRST view of the subject, two important questions arise: 1.
Whether any part of the powers transferred to the general government be
unnecessary or improper? 2. Whether the entire mass of them be dangerous
to the portion of jurisdiction left in the several States?
Is the aggregate power of the general government greater than ought to
have been vested in it? This is the FIRST question.
It cannot have escaped those who have attended with candor to the
arguments employed against the extensive powers of the government, that
the authors of them have very little considered how far these powers
were necessary means of attaining a necessary end. They have chosen
rather to dwell on the inconveniences which must be unavoidably blended
with all political advantages; and on the possible abuses which must be
incident to every power or trust, of which a beneficial use can be made.
This method of handling the subject cannot impose on the good sense of
the people of America. It may display the subtlety of the writer; it may
open a boundless field for rhetoric and declamation; it may inflame the
passions of the unthinking, and may confirm the prejudices of the
misthinking: but cool and candid people will at once reflect, that the
purest of human blessings must have a portion of alloy in them; that the
choice must always be made, if not of the lesser evil, at least of the
GREATER, not the PERFECT, good; and that in every political institution,
a power to advance the public happiness involves a discretion which may
be misapplied and abused. They will see, therefore, that in all cases
where power is to be conferred, the point first to be decided is,
whether such a power be necessary to the public good; as the next will
be, in case of an affirmative decision, to guard as effectually as
possible against a perversion of the power to the public detriment.
That we may form a correct judgment on this subject, it will be proper
to review the several powers conferred on the government of the Union;
and that this may be the more conveniently done they may be reduced into
different classes as they relate to the following different objects: 1.
Security against foreign danger; 2. Regulation of the intercourse with
foreign nations; 3. Maintenance of harmony and proper intercourse among
the States; 4. Certain miscellaneous objects of general utility; 5.
Restraint of the States from certain injurious acts; 6. Provisions for
giving due efficacy to all these powers.
The powers falling within the FIRST class are those of declaring war and
granting letters of marque; of providing armies and fleets; of
regulating and calling forth the militia; of levying and borrowing
money.
Security against foreign danger is one of the primitive objects of civil
society. It is an avowed and essential object of the American Union. The
powers requisite for attaining it must be effectually confided to the
federal councils.
Is the power of declaring war necessary? No man will answer this
question in the negative. It would be superfluous, therefore, to enter
into a proof of the affirmative. The existing Confederation establishes
this power in the most ample form.
Is the power of raising armies and equipping fleets necessary? This is
involved in the foregoing power. It is involved in the power of
self-defense.
But was it necessary to give an INDEFINITE POWER of raising TROOPS, as
well as providing fleets; and of maintaining both in PEACE, as well as
in WAR?
The answer to these questions has been too far anticipated in another
place to admit an extensive discussion of them in this place. The answer
indeed seems to be so obvious and conclusive as scarcely to justify such
a discussion in any place. With what color of propriety could the force
necessary for defense be limited by those who cannot limit the force of
offense? If a federal Constitution could chain the ambition or set
bounds to the exertions of all other nations, then indeed might it
prudently chain the discretion of its own government, and set bounds to
the exertions for its own safety.
How could a readiness for war in time of peace be safely prohibited,
unless we could prohibit, in like manner, the preparations and
establishments of every hostile nation? The means of security can only
be regulated by the means and the danger of attack. They will, in fact,
be ever determined by these rules, and by no others. It is in vain to
oppose constitutional barriers to the impulse of self-preservation. It
is worse than in vain; because it plants in the Constitution itself
necessary usurpations of power, every precedent of which is a germ of
unnecessary and multiplied repetitions. If one nation maintains
constantly a disciplined army, ready for the service of ambition or
revenge, it obliges the most pacific nations who may be within the reach
of its enterprises to take corresponding precautions. The fifteenth
century was the unhappy epoch of military establishments in the time of
peace. They were introduced by Charles VII. of France. All Europe has
followed, or been forced into, the example. Had the example not been
followed by other nations, all Europe must long ago have worn the chains
of a universal monarch. Were every nation except France now to disband
its peace establishments, the same event might follow. The veteran
legions of Rome were an overmatch for the undisciplined valor of all
other nations and rendered her the mistress of the world.
Not the less true is it, that the liberties of Rome proved the final
victim to her military triumphs; and that the liberties of Europe, as
far as they ever existed, have, with few exceptions, been the price of
her military establishments. A standing force, therefore, is a
dangerous, at the same time that it may be a necessary, provision. On
the smallest scale it has its inconveniences. On an extensive scale its
consequences may be fatal. On any scale it is an object of laudable
circumspection and precaution. A wise nation will combine all these
considerations; and, whilst it does not rashly preclude itself from any
resource which may become essential to its safety, will exert all its
prudence in diminishing both the necessity and the danger of resorting
to one which may be inauspicious to its liberties.
The clearest marks of this prudence are stamped on the proposed
Constitution. The Union itself, which it cements and secures, destroys
every pretext for a military establishment which could be dangerous.
America united, with a handful of troops, or without a single soldier,
exhibits a more forbidding posture to foreign ambition than America
disunited, with a hundred thousand veterans ready for combat. It was
remarked, on a former occasion, that the want of this pretext had saved
the liberties of one nation in Europe. Being rendered by her insular
situation and her maritime resources impregnable to the armies of her
neighbors, the rulers of Great Britain have never been able, by real or
artificial dangers, to cheat the public into an extensive peace
establishment. The distance of the United States from the powerful
nations of the world gives them the same happy security. A dangerous
establishment can never be necessary or plausible, so long as they
continue a united people. But let it never, for a moment, be forgotten
that they are indebted for this advantage to the Union alone. The moment
of its dissolution will be the date of a new order of things. The fears
of the weaker, or the ambition of the stronger States, or Confederacies,
will set the same example in the New, as Charles VII. did in the Old
World. The example will be followed here from the same motives which
produced universal imitation there. Instead of deriving from our
situation the precious advantage which Great Britain has derived from
hers, the face of America will be but a copy of that of the continent of
Europe. It will present liberty everywhere crushed between standing
armies and perpetual taxes. The fortunes of disunited America will be
even more disastrous than those of Europe. The sources of evil in the
latter are confined to her own limits. No superior powers of another
quarter of the globe intrigue among her rival nations, inflame their
mutual animosities, and render them the instruments of foreign ambition,
jealousy, and revenge. In America the miseries springing from her
internal jealousies, contentions, and wars, would form a part only of
her lot. A plentiful addition of evils would have their source in that
relation in which Europe stands to this quarter of the earth, and which
no other quarter of the earth bears to Europe.
This picture of the consequences of disunion cannot be too highly
colored, or too often exhibited. Every man who loves peace, every man
who loves his country, every man who loves liberty, ought to have it
ever before his eyes, that he may cherish in his heart a due attachment
to the Union of America, and be able to set a due value on the means of
preserving it.
Next to the effectual establishment of the Union, the best possible
precaution against danger from standing armies is a limitation of the
term for which revenue may be appropriated to their support. This
precaution the Constitution has prudently added. I will not repeat here
the observations which I flatter myself have placed this subject in a
just and satisfactory light. But it may not be improper to take notice
of an argument against this part of the Constitution, which has been
drawn from the policy and practice of Great Britain. It is said that the
continuance of an army in that kingdom requires an annual vote of the
legislature; whereas the American Constitution has lengthened this
critical period to two years. This is the form in which the comparison
is usually stated to the public: but is it a just form? Is it a fair
comparison? Does the British Constitution restrain the parliamentary
discretion to one year? Does the American impose on the Congress
appropriations for two years? On the contrary, it cannot be unknown to
the authors of the fallacy themselves, that the British Constitution
fixes no limit whatever to the discretion of the legislature, and that
the American ties down the legislature to two years, as the longest
admissible term.
Had the argument from the British example been truly stated, it would
have stood thus: The term for which supplies may be appropriated to the
army establishment, though unlimited by the British Constitution, has
nevertheless, in practice, been limited by parliamentary discretion to a
single year. Now, if in Great Britain, where the House of Commons is
elected for seven years; where so great a proportion of the members are
elected by so small a proportion of the people; where the electors are
so corrupted by the representatives, and the representatives so
corrupted by the Crown, the representative body can possess a power to
make appropriations to the army for an indefinite term, without
desiring, or without daring, to extend the term beyond a single year,
ought not suspicion herself to blush, in pretending that the
representatives of the United States, elected FREELY by the WHOLE BODY
of the people, every SECOND YEAR, cannot be safely intrusted with the
discretion over such appropriations, expressly limited to the short
period of TWO YEARS?
A bad cause seldom fails to betray itself. Of this truth, the management
of the opposition to the federal government is an unvaried
exemplification. But among all the blunders which have been committed,
none is more striking than the attempt to enlist on that side the
prudent jealousy entertained by the people, of standing armies. The
attempt has awakened fully the public attention to that important
subject; and has led to investigations which must terminate in a
thorough and universal conviction, not only that the constitution has
provided the most effectual guards against danger from that quarter, but
that nothing short of a Constitution fully adequate to the national
defense and the preservation of the Union, can save America from as many
standing armies as it may be split into States or Confederacies, and
from such a progressive augmentation, of these establishments in each,
as will render them as burdensome to the properties and ominous to the
liberties of the people, as any establishment that can become necessary,
under a united and efficient government, must be tolerable to the former
and safe to the latter.
The palpable necessity of the power to provide and maintain a navy has
protected that part of the Constitution against a spirit of censure,
which has spared few other parts. It must, indeed, be numbered among the
greatest blessings of America, that as her Union will be the only source
of her maritime strength, so this will be a principal source of her
security against danger from abroad. In this respect our situation bears
another likeness to the insular advantage of Great Britain. The
batteries most capable of repelling foreign enterprises on our safety,
are happily such as can never be turned by a perfidious government
against our liberties.
The inhabitants of the Atlantic frontier are all of them deeply
interested in this provision for naval protection, and if they have
hitherto been suffered to sleep quietly in their beds; if their property
has remained safe against the predatory spirit of licentious
adventurers; if their maritime towns have not yet been compelled to
ransom themselves from the terrors of a conflagration, by yielding to
the exactions of daring and sudden invaders, these instances of good
fortune are not to be ascribed to the capacity of the existing
government for the protection of those from whom it claims allegiance,
but to causes that are fugitive and fallacious. If we except perhaps
Virginia and Maryland, which are peculiarly vulnerable on their eastern
frontiers, no part of the Union ought to feel more anxiety on this
subject than New York. Her seacoast is extensive. A very important
district of the State is an island. The State itself is penetrated by a
large navigable river for more than fifty leagues. The great emporium of
its commerce, the great reservoir of its wealth, lies every moment at
the mercy of events, and may almost be regarded as a hostage for
ignominious compliances with the dictates of a foreign enemy, or even
with the rapacious demands of pirates and barbarians. Should a war be
the result of the precarious situation of European affairs, and all the
unruly passions attending it be let loose on the ocean, our escape from
insults and depredations, not only on that element, but every part of
the other bordering on it, will be truly miraculous. In the present
condition of America, the States more immediately exposed to these
calamities have nothing to hope from the phantom of a general government
which now exists; and if their single resources were equal to the task
of fortifying themselves against the danger, the object to be protected
would be almost consumed by the means of protecting them.
The power of regulating and calling forth the militia has been already
sufficiently vindicated and explained.
The power of levying and borrowing money, being the sinew of that which
is to be exerted in the national defense, is properly thrown into the
same class with it. This power, also, has been examined already with
much attention, and has, I trust, been clearly shown to be necessary,
both in the extent and form given to it by the Constitution. I will
address one additional reflection only to those who contend that the
power ought to have been restrained to external -- taxation by which
they mean, taxes on articles imported from other countries. It cannot be
doubted that this will always be a valuable source of revenue; that for
a considerable time it must be a principal source; that at this moment
it is an essential one. But we may form very mistaken ideas on this
subject, if we do not call to mind in our calculations, that the extent
of revenue drawn from foreign commerce must vary with the variations,
both in the extent and the kind of imports; and that these variations do
not correspond with the progress of population, which must be the
general measure of the public wants. As long as agriculture continues
the sole field of labor, the importation of manufactures must increase
as the consumers multiply. As soon as domestic manufactures are begun by
the hands not called for by agriculture, the imported manufactures will
decrease as the numbers of people increase. In a more remote stage, the
imports may consist in a considerable part of raw materials, which will
be wrought into articles for exportation, and will, therefore, require
rather the encouragement of bounties, than to be loaded with
discouraging duties. A system of government, meant for duration, ought
to contemplate these revolutions, and be able to accommodate itself to
them.
Some, who have not denied the necessity of the power of taxation, have
grounded a very fierce attack against the Constitution, on the language
in which it is defined. It has been urged and echoed, that the power "to
lay and collect taxes, duties, imposts, and excises, to pay the debts,
and provide for the common defense and general welfare of the United
States," amounts to an unlimited commission to exercise every power
which may be alleged to be necessary for the common defense or general
welfare. No stronger proof could be given of the distress under which
these writers labor for objections, than their stooping to such a
misconstruction.
Had no other enumeration or definition of the powers of the Congress
been found in the Constitution, than the general expressions just cited,
the authors of the objection might have had some color for it; though it
would have been difficult to find a reason for so awkward a form of
describing an authority to legislate in all possible cases. A power to
destroy the freedom of the press, the trial by jury, or even to regulate
the course of descents, or the forms of conveyances, must be very
singularly expressed by the terms "to raise money for the general
welfare."
But what color can the objection have, when a specification of the
objects alluded to by these general terms immediately follows, and is
not even separated by a longer pause than a semicolon? If the different
parts of the same instrument ought to be so expounded, as to give
meaning to every part which will bear it, shall one part of the same
sentence be excluded altogether from a share in the meaning; and shall
the more doubtful and indefinite terms be retained in their full extent,
and the clear and precise expressions be denied any signification
whatsoever? For what purpose could the enumeration of particular powers
be inserted, if these and all others were meant to be included in the
preceding general power? Nothing is more natural nor common than first
to use a general phrase, and then to explain and qualify it by a recital
of particulars. But the idea of an enumeration of particulars which
neither explain nor qualify the general meaning, and can have no other
effect than to confound and mislead, is an absurdity, which, as we are
reduced to the dilemma of charging either on the authors of the
objection or on the authors of the Constitution, we must take the
liberty of supposing, had not its origin with the latter.
The objection here is the more extraordinary, as it appears that the
language used by the convention is a copy from the articles of
Confederation. The objects of the Union among the States, as described
in article third, are "their common defense, security of their
liberties, and mutual and general welfare." The terms of article eighth
are still more identical: "All charges of war and all other expenses
that shall be incurred for the common defense or general welfare, and
allowed by the United States in Congress, shall be defrayed out of a
common treasury," etc. A similar language again occurs in article ninth.
Construe either of these articles by the rules which would justify the
construction put on the new Constitution, and they vest in the existing
Congress a power to legislate in all cases whatsoever. But what would
have been thought of that assembly, if, attaching themselves to these
general expressions, and disregarding the specifications which ascertain
and limit their import, they had exercised an unlimited power of
providing for the common defense and general welfare? I appeal to the
objectors themselves, whether they would in that case have employed the
same reasoning in justification of Congress as they now make use of
against the convention. How difficult it is for error to escape its own
condemnation!
PUBLIUS
FEDERALIST No. 42
The Powers Conferred by the Constitution Further Considered
From the New York Packet.
Tuesday, January 22, 1788.
MADISON
To the People of the State of New York:
THE SECOND class of powers, lodged in the general government, consists
of those which regulate the intercourse with foreign nations, to wit: to
make treaties; to send and receive ambassadors, other public ministers,
and consuls; to define and punish piracies and felonies committed on the
high seas, and offenses against the law of nations; to regulate foreign
commerce, including a power to prohibit, after the year 1808, the
importation of slaves, and to lay an intermediate duty of ten dollars
per head, as a discouragement to such importations.
This class of powers forms an obvious and essential branch of the
federal administration. If we are to be one nation in any respect, it
clearly ought to be in respect to other nations.
The powers to make treaties and to send and receive ambassadors, speak
their own propriety. Both of them are comprised in the articles of
Confederation, with this difference only, that the former is
disembarrassed, by the plan of the convention, of an exception, under
which treaties might be substantially frustrated by regulations of the
States; and that a power of appointing and receiving "other public
ministers and consuls," is expressly and very properly added to the
former provision concerning ambassadors. The term ambassador, if taken
strictly, as seems to be required by the second of the articles of
Confederation, comprehends the highest grade only of public ministers,
and excludes the grades which the United States will be most likely to
prefer, where foreign embassies may be necessary. And under no latitude
of construction will the term comprehend consuls. Yet it has been found
expedient, and has been the practice of Congress, to employ the inferior
grades of public ministers, and to send and receive consuls.
It is true, that where treaties of commerce stipulate for the mutual
appointment of consuls, whose functions are connected with commerce, the
admission of foreign consuls may fall within the power of making
commercial treaties; and that where no such treaties exist, the mission
of American consuls into foreign countries may PERHAPS be covered under
the authority, given by the ninth article of the Confederation, to
appoint all such civil officers as may be necessary for managing the
general affairs of the United States. But the admission of consuls into
the United States, where no previous treaty has stipulated it, seems to
have been nowhere provided for. A supply of the omission is one of the
lesser instances in which the convention have improved on the model
before them. But the most minute provisions become important when they
tend to obviate the necessity or the pretext for gradual and unobserved
usurpations of power. A list of the cases in which Congress have been
betrayed, or forced by the defects of the Confederation, into violations
of their chartered authorities, would not a little surprise those who
have paid no attention to the subject; and would be no inconsiderable
argument in favor of the new Constitution, which seems to have provided
no less studiously for the lesser, than the more obvious and striking
defects of the old.
The power to define and punish piracies and felonies committed on the
high seas, and offenses against the law of nations, belongs with equal
propriety to the general government, and is a still greater improvement
on the articles of Confederation. These articles contain no provision
for the case of offenses against the law of nations; and consequently
leave it in the power of any indiscreet member to embroil the
Confederacy with foreign nations. The provision of the federal articles
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 might, perhaps, without inconveniency, be left to the law of
nations; though a legislative definition of them is found in most
municipal codes. A definition of felonies on the high seas is evidently
requisite. Felony is a term of loose signification, even in the common
law of England; and of various import in the statute law of that
kingdom. But neither the common nor the statute law of that, or of any
other nation, ought to be a standard for the proceedings of this, unless
previously made its own by legislative adoption. The meaning of the
term, as defined in the codes of the several States, would be as
impracticable as the former would be a dishonorable and illegitimate
guide. It is not precisely the same in any two of the States; and varies
in each with every revision of its criminal laws. For the sake of
certainty and uniformity, therefore, the power of defining felonies in
this case was in every respect necessary and proper.
The regulation of foreign commerce, having fallen within several views
which have been taken of this subject, has been too fully discussed to
need additional proofs here of its being properly submitted to the
federal administration.
It were doubtless to be wished, that the power of prohibiting the
importation of slaves had not been postponed until the year 1808, or
rather that it had been suffered to have immediate operation. But it is
not difficult to account, either for this restriction on the general
government, or for the manner in which the whole clause is expressed. It
ought to be considered as a great point gained in favor of humanity,
that a period of twenty years may terminate forever, within these
States, a traffic which has so long and so loudly upbraided the
barbarism of modern policy; that within that period, it will receive a
considerable discouragement from the federal government, and may be
totally abolished, by a concurrence of the few States which continue the
unnatural traffic, in the prohibitory example which has been given by so
great a majority of the Union. Happy would it be for the unfortunate
Africans, if an equal prospect lay before them of being redeemed from
the oppressions of their European brethren!
Attempts have been made to pervert this clause into an objection against
the Constitution, by representing it on one side as a criminal
toleration of an illicit practice, and on another as calculated to
prevent voluntary and beneficial emigrations from Europe to America. I
mention these misconstructions, not with a view to give them an answer,
for they deserve none, but as specimens of the manner and spirit in
which some have thought fit to conduct their opposition to the proposed
government.
The powers included in the THIRD class are those which provide for the
harmony and proper intercourse among the States.
Under this head might be included the particular restraints imposed on
the authority of the States, and certain powers of the judicial
department; but the former are reserved for a distinct class, and the
latter will be particularly examined when we arrive at the structure and
organization of the government. I shall confine myself to a cursory
review of the remaining powers comprehended under this third
description, to wit: to regulate commerce among the several States and
the Indian tribes; to coin money, regulate the value thereof, and of
foreign coin; to provide for the punishment of counterfeiting the
current coin and secureties of the United States; to fix the standard of
weights and measures; to establish a uniform rule of naturalization, and
uniform laws of bankruptcy, 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 to establish post
offices and post roads.
The defect of power in the existing Confederacy to regulate the commerce
between its several members, is in the number of those which have been
clearly pointed out by experience. To the proofs and remarks which
former papers have brought into view on this subject, it may be added
that without this supplemental provision, the great and essential power
of regulating foreign commerce would have been incomplete and
ineffectual. A very material object of this power was the relief of the
States which import and export through other States, from the improper
contributions levied on them by the latter. Were these at liberty to
regulate the trade between State and State, it must be foreseen that
ways would be found out to load the articles of import and export,
during the passage through their jurisdiction, with duties which would
fall on the makers of the latter and the consumers of the former. We may
be assured by past experience, that such a practice would be introduced
by future contrivances; and both by that and a common knowledge of human
affairs, that it would nourish unceasing animosities, and not improbably
terminate in serious interruptions of the public tranquillity. To those
who do not view the question through the medium of passion or of
interest, the desire of the commercial States to collect, in any form,
an indirect revenue from their uncommercial neighbors, must appear not
less impolitic than it is unfair; since it would stimulate the injured
party, by resentment as well as interest, to resort to less convenient
channels for their foreign trade. But the mild voice of reason, pleading
the cause of an enlarged and permanent interest, is but too often
drowned, before public bodies as well as individuals, by the clamors of
an impatient avidity for immediate and immoderate gain.
The necessity of a superintending authority over the reciprocal trade of
confederated States, has been illustrated by other examples as well as
our own. In Switzerland, where the Union is so very slight, each canton
is obliged to allow to merchandises a passage through its jurisdiction
into other cantons, without an augmentation of the tolls. In Germany it
is a law of the empire, that the princes and states shall not lay tolls
or customs on bridges, rivers, or passages, without the consent of the
emperor and the diet; though it appears from a quotation in an
antecedent paper, that the practice in this, as in many other instances
in that confederacy, has not followed the law, and has produced there
the mischiefs which have been foreseen here. Among the restraints
imposed by the Union of the Netherlands on its members, one is, that
they shall not establish imposts disadvantageous to their neighbors,
without the general permission.
The regulation of commerce with the Indian tribes is very properly
unfettered from two limitations in the articles of Confederation, which
render the provision obscure and contradictory. The power is there
restrained to Indians, not members of any of the States, and is not to
violate or infringe the legislative right of any State within its own
limits. What description of Indians are to be deemed members of a State,
is not yet settled, and has been a question of frequent perplexity and
contention in the federal councils. And how the trade with Indians,
though not members of a State, yet residing within its legislative
jurisdiction, can be regulated by an external authority, without so far
intruding on the internal rights of legislation, is absolutely
incomprehensible. This is not the only case in which the articles of
Confederation have inconsiderately endeavored to accomplish
impossibilities; to reconcile a partial sovereignty in the Union, with
complete sovereignty in the States; to subvert a mathematical axiom, by
taking away a part, and letting the whole remain.
All that need be remarked on the power to coin money, regulate the value
thereof, and of foreign coin, is, that by providing for this last case,
the Constitution has supplied a material omission in the articles of
Confederation. The authority of the existing Congress is restrained to
the regulation of coin STRUCK by their own authority, or that of the
respective States. It must be seen at once that the proposed 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 punishment of counterfeiting the public securities, as well as the
current coin, is submitted of course to that authority which is to
secure the value of both.
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 dissimilarity in the rules of naturalization has long been remarked
as a fault in our system, and as laying a foundation for intricate and
delicate questions. In the fourth article of the Confederation, it is
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," etc. There is a confusion of language
here, which is remarkable. Why the terms FREE INHABITANTS are used in
one part of the article, FREE CITIZENS in another, and PEOPLE in
another; or what was meant by superadding to "all privileges and
immunities of free citizens," "all the privileges of trade and
commerce," cannot easily be determined. It seems to be a construction
scarcely avoidable, however, that those who come under the denomination
of FREE INHABITANTS of a State, although not citizens of such State, are
entitled, in every other State, to all the privileges of FREE CITIZENS
of the latter; that is, to greater privileges than they may be entitled
to in their own State: so that it may be in the power of a particular
State, or rather every State is laid under a necessity, not only to
confer the rights of citizenship in other States upon any whom it may
admit to such rights within itself, but upon any whom it may allow to
become inhabitants within its jurisdiction. But were an exposition of
the term "inhabitants" to be admitted which would confine the stipulated
privileges to citizens alone, the difficulty is diminished only, not
removed. The very improper power would still be retained by each State,
of naturalizing aliens in every other State. In one State, residence for
a short term confirms all the rights of citizenship: in another,
qualifications of greater importance are required. An alien, therefore,
legally incapacitated for certain rights in the latter, may, by previous
residence only in the former, elude his incapacity; and thus the law of
one State be preposterously rendered paramount to the law of another,
within the jurisdiction of the other. We owe it to mere casualty, that
very serious embarrassments on this subject have been hitherto escaped.
By the laws of several States, certain descriptions of aliens, who had
rendered themselves obnoxious, were laid under interdicts inconsistent
not only with the rights of citizenship but with the privilege of
residence. What would have been the consequence, if such persons, by
residence or otherwise, had acquired the character of citizens under the
laws of another State, and then asserted their rights as such, both to
residence and citizenship, within the State proscribing them? Whatever
the legal consequences might have been, other consequences would
probably have resulted, of too serious a nature not to be provided
against. The new Constitution has accordingly, with great propriety,
made provision against them, and all others proceeding from the defect
of the Confederation on this head, by authorizing the general government
to establish a uniform rule of naturalization throughout the United
States.
The power of establishing uniform laws of bankruptcy is so intimately
connected with the regulation of commerce, and will prevent so many
frauds where the parties or their property may lie or be removed into
different States, that the expediency of it seems not likely to be drawn
into question.
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 the clause relating to this subject in the
articles of Confederation. The meaning of the latter is extremely
indeterminate, and can be of little importance under any interpretation
which it will bear. The power here established may be rendered a very
convenient instrument of justice, and be particularly beneficial on the
borders of contiguous States, where the effects liable to justice may be
suddenly and secretly translated, in any stage of the process, within a
foreign jurisdiction.
The power of establishing post roads must, in every view, be a harmless
power, and may, perhaps, by judicious management, become productive of
great public conveniency. Nothing which tends to facilitate the
intercourse between the States can be deemed unworthy of the public
care.
PUBLIUS
FEDERALIST No. 43
The Same Subject Continued (The Powers Conferred by the
Constitution Further Considered)
For the Independent Journal.
Wednesday, January 23, 1788
MADISON
To the People of the State of New York:
THE FOURTH class comprises the following miscellaneous powers:
1. A power "to promote the progress of science and useful arts, by
securing, for a limited time, to authors and inventors, the exclusive
right to their respective writings and discoveries."
The utility of this power will scarcely be questioned. The copyright of
authors has been solemnly adjudged, in Great Britain, to be a right of
common law. The right to useful inventions seems with equal reason to
belong to the inventors. The public good fully coincides in both cases
with the claims of individuals. The States cannot separately make
effectual provisions for either of the cases, and most of them have
anticipated the decision of this point, by laws passed at the instance
of Congress.
2. "To 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 legislatures of the States in
which the same shall be, for the erection of forts, magazines, arsenals,
dockyards, and other needful buildings."
The indispensable necessity of complete authority at the seat of
government, carries its own evidence with it. It is a power exercised by
every legislature of the Union, I might say of the world, by virtue of
its general supremacy. Without it, not only the public authority might
be insulted and its proceedings interrupted with impunity; but a
dependence of the members of the general government on the State
comprehending the seat of the government, for protection in the exercise
of their duty, might bring on the national councils an imputation of awe
or influence, equally dishonorable to the government and dissatisfactory
to the other members of the Confederacy. This consideration has the more
weight, as the gradual accumulation of public improvements at the
stationary residence of the government would be both too great a public
pledge to be left in the hands of a single State, and would create so
many obstacles to a removal of the government, as still further to
abridge its necessary independence. The extent of this federal district
is sufficiently circumscribed to satisfy every jealousy of an opposite
nature. And as it is to be appropriated to this use with the consent of
the State ceding it; as the State will no doubt provide in the compact
for the rights and the consent of the citizens inhabiting it; as the
inhabitants will find sufficient inducements of interest to become
willing parties to the cession; as they will have had their voice in the
election of the government which is to exercise authority over them; as
a municipal legislature for local purposes, derived from their own
suffrages, will of course be allowed them; and as the authority of the
legislature of the State, and of the inhabitants of the ceded part of
it, to concur in the cession, will be derived from the whole people of
the State in their adoption of the Constitution, every imaginable
objection seems to be obviated.
The necessity of a like authority over forts, magazines, etc.,
established by the general government, 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. Nor would it be proper for the places on which the
security of the entire Union may depend, to be in any degree 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.
3. "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 attained."
As treason may be committed against the United States, the authority of
the United States ought to be enabled to punish it. But as new-fangled
and artificial treasons have been the great engines by which violent
factions, the natural offspring of free government, have usually wreaked
their alternate malignity on each other, the convention have, with great
judgment, opposed 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, even in punishing it,
from extending the consequences of guilt beyond the person of its
author.
4. "To admit new States into the 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."
In the articles of Confederation, no provision is found on this
important subject. Canada was to be admitted of right, on her joining in
the measures of the United States; and the other COLONIES, by which were
evidently meant the other British colonies, at 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
Congress have been 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 the federal
authority, and that of the States concerned, is consonant to the
principles which ought to govern such transactions. The particular
precaution against the erection of new States, by the partition of a
State without its consent, quiets the jealousy of the larger States; as
that of the smaller is quieted by a like precaution, against a junction
of States without their consent.
5. "To dispose of and make all needful rules and regulations respecting
the territory or other property belonging to the United States," with a
proviso, that "nothing in the Constitution shall be so construed as to
prejudice any claims of the United States, or of any particular State."
This is a power of very great importance, and required by considerations
similar to those which show the propriety of the former. The proviso
annexed is proper in itself, and was probably rendered absolutely
necessary by jealousies and questions concerning the Western territory
sufficiently known to the public.
6. "To guarantee to every State in the Union a republican form of
government; to 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."
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
monarchial innovations. The more intimate the nature of such a union 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. But a right implies a remedy; and where else
could the remedy be deposited, than where it is deposited by the
Constitution? Governments of dissimilar principles and forms have been
found less adapted to a federal coalition of any sort, than 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
latter case, no doubt, the disproportionate force, as well as the
monarchical form, of the new confederate, had its share of influence on
the events. It may possibly be asked, what need there could be of such a
precaution, and whether it may not become a pretext for alterations in
the State governments, without the concurrence of the States themselves.
These questions admit of ready answers. If the interposition of the
general government should not be needed, the provision for such an event
will be a harmless superfluity only in the Constitution. But who can say
what experiments may be produced by the caprice of particular States, by
the ambition of enterprising leaders, or by the intrigues and influence
of foreign powers? To the second question it may be answered, that if
the general government should interpose by virtue of this constitutional
authority, it will be, of course, bound to pursue the authority. But the
authority extends no further than to a GUARANTY of a republican form of
government, which supposes a pre-existing government of the form which
is to be guaranteed. As long, therefore, as the existing republican
forms are continued by the States, they are guaranteed by the federal
Constitution. Whenever the States may choose to substitute other
republican forms, they have a right to do so, and to claim the federal
guaranty for the latter. The only restriction imposed on them is, that
they shall not exchange republican for antirepublican Constitutions; a
restriction which, it is presumed, will hardly be considered as a
grievance.
A protection against invasion is due from every society to the parts
composing it. The latitude of the expression here used seems to secure
each State, not only against foreign hostility, but against ambitious or
vindictive enterprises of its more powerful neighbors. The history, both
of ancient and modern confederacies, proves that the weaker members of
the union ought not to be insensible to the policy of this article.
Protection against domestic violence is added with equal propriety. It
has been remarked, that even among the Swiss cantons, which, properly
speaking, are not under one government, provision is made for this
object; and the history of that league informs us that mutual aid is
frequently claimed and afforded; and as well by the most democratic, as
the other cantons. A recent and well-known event among ourselves has
warned us to be prepared for emergencies of a like nature.
At first view, it might seem not to square with the republican theory,
to suppose, either that a majority have not the right, or that a
minority will have the force, to subvert a government; and consequently,
that the federal interposition can never be required, but when it would
be improper. But theoretic reasoning, in this as in most other cases,
must be qualified by the lessons of practice. Why may not illicit
combinations, for purposes of violence, be formed as well by a majority
of a State, especially a small State as by a majority of a county, or a
district of the same State; and if the authority of the State ought, in
the latter case, to protect the local magistracy, ought not the federal
authority, in the former, to support the State authority? Besides, there
are certain parts of the State constitutions which are so interwoven
with the federal Constitution, that a violent blow cannot be given to
the one without communicating the wound to the other. Insurrections in a
State will rarely induce a federal interposition, unless the number
concerned in them bear some proportion to the friends of government. It
will be much better that the violence in such cases should be repressed
by the superintending power, than that the majority should be left to
maintain their cause by a bloody and obstinate contest. The existence of
a right to interpose, will generally prevent the necessity of exerting
it.
Is it true that force and right are necessarily on the same side in
republican governments? May not the minor party possess such a
superiority of pecuniary resources, of military talents and experience,
or of secret succors from foreign powers, as will render it superior
also in an appeal to the sword? May not a more compact and advantageous
position turn the scale on the same side, against a superior number so
situated as to be less capable of a prompt and collected exertion of its
strength? Nothing can be more chimerical than to imagine that in a trial
of actual force, victory may be calculated by the rules which prevail in
a census of the inhabitants, or which determine the event of an
election! May it not happen, in fine, that the minority of CITIZENS may
become a majority of PERSONS, by the accession of alien residents, of a
casual concourse of adventurers, or of those whom the constitution of
the State has not admitted to the rights of suffrage? I take no notice
of an unhappy species of population abounding in some of the States,
who, during the calm of regular government, are sunk below the level of
men; but who, in the tempestuous scenes of civil violence, may emerge
into the human character, and give a superiority of strength to any
party with which they may associate themselves.
In cases where it may be doubtful on which side justice lies, what
better umpires could be desired by two violent factions, flying to arms,
and tearing a State to pieces, than the representatives of confederate
States, not heated by the local flame? To the impartiality of judges,
they would unite the affection of friends. Happy would it be if such a
remedy for its infirmities could be enjoyed by all free governments; if
a project equally effectual could be established for the universal peace
of mankind!
Should it be asked, what is to be the redress for an insurrection
pervading all the States, and comprising a superiority of the entire
force, though not a constitutional right? the answer must be, that such
a case, as it would be without the compass of human remedies, so it is
fortunately not within the compass of human probability; and that it is
a sufficient recommendation of the federal 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."
7. "To consider all debts contracted, and engagements entered into,
before the adoption of this Constitution, as being no less valid against
the United States, under this Constitution, than under the
Confederation."
This can only be considered as a declaratory proposition; and may have
been inserted, among other reasons, for the satisfaction of the foreign
creditors of the United States, who cannot be strangers to the pretended
doctrine, that a change in the political form of civil society has the
magical effect of dissolving its moral obligations.
Among the lesser criticisms which have been exercised on the
Constitution, it has been remarked that the validity of engagements
ought to have been asserted in favor of the United States, as well as
against them; and in the spirit which usually characterizes little
critics, the omission has been transformed and magnified into a plot
against the national rights. The authors of this discovery may be told,
what few others need to be informed of, that as engagements are in their
nature reciprocal, an assertion of their validity on one side,
necessarily involves a validity on the other side; and that as the
article is merely declaratory, the establishment of the principle in one
case is sufficient for every case. They may be further told, that every
constitution must limit its precautions to dangers that are not
altogether imaginary; and that no real danger can exist that the
government would DARE, with, or even without, this constitutional
declaration before it, to remit the debts justly due to the public, on
the pretext here condemned.
8. "To provide for amendments to be ratified by three fourths of the
States under two exceptions only."
That useful alterations will be suggested by experience, could not but
be foreseen. It was requisite, therefore, that a mode for introducing
them should be provided. The mode preferred by the convention seems to
be stamped with every mark of propriety. It guards equally against that
extreme facility, which would render the Constitution too mutable; and
that extreme difficulty, which might perpetuate its discovered faults.
It, moreover, equally enables the general and the State governments to
originate the amendment of errors, as they may be pointed out by the
experience on one side, or on the other. The exception in favor of the
equality of suffrage in the Senate, was probably meant as a palladium to
the residuary sovereignty of the States, implied and secured by that
principle of representation in one branch of the legislature; and was
probably insisted on by the States particularly attached to that
equality. The other exception must have been admitted on the same
considerations which produced the privilege defended by it.
9. "The ratification of the conventions of nine States shall be
sufficient for the establishment of this Constitution between the
States, ratifying the same."
This article speaks for itself. The express authority of the people
alone 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 a want of foresight in the
convention, which our own experience would have rendered inexcusable.
Two questions of a very delicate nature present themselves on this
occasion: 1. On what principle the Confederation, which stands in the
solemn form of a compact among the States, can be superseded without the
unanimous consent of the parties to it? 2. What relation is to subsist
between the nine or more States ratifying the Constitution, and the
remaining few who do not become parties to it?
The first question is answered at once by recurring to the absolute
necessity of the case; to the great principle of self-preservation; to
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. PERHAPS, also, an answer may be found without searching
beyond the principles of the compact itself. It has been heretofore
noted among the defects of the Confederation, that in many of the States
it had received no higher sanction than a mere legislative ratification.
The principle of reciprocality seems to require that its obligation on
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 conditions of each other;
that a breach of any one article is a breach of the whole treaty; and
that a breach, committed by either of the parties, absolves the others,
and authorizes them, if they please, to pronounce the compact violated
and void. Should it unhappily be necessary to appeal to these delicate
truths for a justification for dispensing with the consent of particular
States to a dissolution of the federal pact, will not the complaining
parties find it a difficult task to answer the MULTIPLIED and IMPORTANT
infractions with which they may be confronted? The time has been when it
was incumbent on us all to veil the ideas which this paragraph exhibits.
The scene is now changed, and with it the part which the same motives
dictate.
The second question is not less delicate; and the flattering prospect of
its being merely hypothetical forbids an overcurious discussion of it.
It is one of those cases which must be left to provide for itself. In
general, it may be observed, that although no political relation can
subsist between the assenting and dissenting States, yet the moral
relations will remain uncancelled. The claims of justice, both on one
side and on the other, will be in force, and must be fulfilled; the
rights of humanity must in all cases be duly and mutually respected;
whilst considerations of a common interest, and, above all, the
remembrance of the endearing scenes which are past, and the anticipation
of a speedy triumph over the obstacles to reunion, will, it is hoped,
not urge in vain MODERATION on one side, and PRUDENCE on the other.
PUBLIUS
FEDERALIST No. 44
Restrictions on the Authority of the Several States
From the New York Packet.
Friday, January 25, 1788.
MADISON
To the People of the State of New York:
A FIFTH class of provisions in favor of the federal authority consists
of the following restrictions on the authority of the several States:
1. "No State shall enter into any treaty, alliance, or confederation;
grant letters of marque and reprisal; coin money; emit bills of credit;
make any thing but gold and silver a legal tender in payment of debts;
pass any bill of attainder, ex post facto law, or law impairing the
obligation of contracts; or grant any title of nobility."
The prohibition against treaties, alliances, and confederations makes a
part of the existing articles of Union; and for reasons which need no
explanation, is copied into the new Constitution. The prohibition of
letters of marque is another part of the old system, but is somewhat
extended in the new. According to the former, letters of marque could be
granted by the States after a declaration of war; according to the
latter, these licenses must be obtained, as well during war as previous
to its declaration, from the government of the United States. This
alteration is fully justified by the advantage of uniformity in all
points which relate to foreign powers; and of immediate responsibility
to the nation in all those for whose conduct the nation itself is to be
responsible.
The right of coining money, which is here taken from the States, was
left in their hands by the Confederation, as a concurrent right with
that of Congress, under an exception in favor of the exclusive right of
Congress to regulate the alloy and value. In this instance, also, the
new provision is an improvement on the old. Whilst the alloy and value
depended on the general authority, a right of coinage in the particular
States could have no other effect than to multiply expensive mints and
diversify the forms and weights of the circulating pieces. The latter
inconveniency defeats one purpose for which the power was originally
submitted to the federal head; and as far as the former might prevent an
inconvenient remittance of gold and silver to the central mint for
recoinage, the end can be as well attained by local mints established
under the general authority.
The extension of the prohibition to bills of credit must give pleasure
to every citizen, in proportion to his love of justice and his knowledge
of the true springs of public prosperity. The loss which America has
sustained since the peace, from the pestilent effects of paper money on
the necessary confidence between man and man, on the necessary
confidence in the public councils, on the industry and morals of the
people, and on the character of republican government, constitutes an
enormous debt against the States chargeable with this unadvised measure,
which must long remain unsatisfied; or rather an accumulation of guilt,
which can be expiated no otherwise than by a voluntary sacrifice on the
altar of justice, of the power which has been the instrument of it. In
addition to these persuasive considerations, it may be observed, that
the same reasons which show the necessity of denying to the States the
power of regulating coin, prove with equal force that they ought not to
be at liberty to substitute a paper medium in the place of coin. Had
every State a right to regulate the value of its coin, there might be as
many different currencies as States, and thus the intercourse among them
would be impeded; retrospective alterations in its value might be made,
and thus the citizens of other States be injured, and animosities be
kindled among the States themselves. The subjects of foreign powers
might suffer from the same cause, and hence the Union be discredited and
embroiled by the indiscretion of a single member. No one of these
mischiefs is less incident to a power in the States to emit paper money,
than to coin gold or silver. The power to make any thing but gold and
silver a tender in payment of debts, is withdrawn from the States, on
the same principle with that of issuing a paper currency.
Bills of attainder, ex post facto laws, and laws impairing the
obligation of contracts, are contrary to the first principles of the
social compact, and to every principle of sound legislation. The two
former are expressly prohibited by the declarations prefixed to some of
the State constitutions, and all of them are prohibited by the spirit
and scope of these fundamental charters. Our own experience has taught
us, nevertheless, that additional fences against these dangers ought not
to be omitted. Very properly, therefore, have the convention added this
constitutional bulwark in favor of personal security and private rights;
and I am much deceived if they have not, in so doing, as faithfully
consulted the genuine sentiments as the undoubted interests of their
constituents. The sober people of America are weary of the fluctuating
policy which has directed the public councils. They have seen with
regret and indignation that sudden changes and legislative
interferences, in cases affecting personal rights, become jobs in the
hands of enterprising and influential speculators, and snares to the
more-industrious and lessinformed part of the community. They have seen,
too, that one legislative interference is but the first link of a long
chain of repetitions, every subsequent interference being naturally
produced by the effects of the preceding. They very rightly infer,
therefore, that some thorough reform is wanting, which will banish
speculations on public measures, inspire a general prudence and
industry, and give a regular course to the business of society. The
prohibition with respect to titles of nobility is copied from the
articles of Confederation and needs no comment.
2. "No State shall, without the consent of the Congress, lay any imposts
or duties on imports or exports, except what may be absolutely necessary
for executing its inspection laws, and the net produce of all duties and
imposts laid by any State on imports or exports, shall be for the use of
the treasury of the United States; and all such laws shall be subject to
the revision and control of the Congress. No State shall, without the
consent of Congress, lay any duty on tonnage, keep troops or ships of
war in time of peace, enter into any agreement or compact with another
State, or with a foreign power, or engage in war unless actually
invaded, or in such imminent danger as will not admit of delay."
The restraint on the power of the States over imports and exports is
enforced by all the arguments which prove the necessity of submitting
the regulation of trade to the federal councils. It is needless,
therefore, to remark further on this head, than that the manner in which
the restraint is qualified seems well calculated at once to secure to
the States a reasonable discretion in providing for the conveniency of
their imports and exports, and to the United States a reasonable check
against the abuse of this discretion. The remaining particulars of this
clause fall within reasonings which are either so obvious, or have been
so fully developed, that they may be passed over without remark.
The SIXTH and last class consists of the several powers and provisions
by which efficacy is given to all the rest.
1. Of these the first is, the "power to make all laws which shall be
necessary and proper for carrying into execution the foregoing powers,
and all other powers vested by this Constitution in the government of
the United States, or in any department or officer thereof."
Few parts of the Constitution have been assailed with more intemperance
than this; yet on a fair investigation of it, no part can appear more
completely invulnerable. Without the SUBSTANCE of this power, the whole
Constitution would be a dead letter. Those who object to the article,
therefore, as a part of the Constitution, can only mean that the FORM of
the provision is improper. But have they considered whether a better
form could have been substituted?
There are four other possible methods which the Constitution might have
taken on this subject. They might have copied the second article of the
existing Confederation, which would have prohibited the exercise of any
power not EXPRESSLY delegated; they might have attempted a positive
enumeration of the powers comprehended under the general terms
"necessary and proper"; they might have attempted a negative enumeration
of them, by specifying the powers excepted from the general definition;
they might have been altogether silent on the subject, leaving these
necessary and proper powers to construction and inference.
Had the convention taken the first method of adopting the second article
of Confederation, it is evident that the new Congress would be
continually exposed, as their predecessors have been, to the alternative
of construing the term "EXPRESSLY" with so much rigor, as to disarm the
government of all real authority whatever, or with so much latitude as
to destroy altogether the force of the restriction. It would be easy to
show, if it were necessary, that no important power, delegated by the
articles of Confederation, has been or can be executed by Congress,
without recurring more or less to the doctrine of CONSTRUCTION or
IMPLICATION. As the powers delegated under the new system are more
extensive, the government which is to administer it would find itself
still more distressed with the alternative of betraying the public
interests by doing nothing, or of violating the Constitution by
exercising powers indispensably necessary and proper, but, at the same
time, not EXPRESSLY granted.
Had the convention attempted a positive enumeration of the powers
necessary and proper for carrying their other powers into effect, the
attempt would have involved a complete digest of laws on every subject
to which the Constitution relates; accommodated too, not only to the
existing state of things, but to all the possible changes which futurity
may produce; for in every new application of a general power, the
PARTICULAR POWERS, which are the means of attaining the OBJECT of the
general power, must always necessarily vary with that object, and be
often properly varied whilst the object remains the same.
Had they attempted to enumerate the particular powers or means not
necessary or proper for carrying the general powers into execution, the
task would have been no less chimerical; and would have been liable to
this further objection, that every defect in the enumeration would have
been equivalent to a positive grant of authority. If, to avoid this
consequence, they had attempted a partial enumeration of the exceptions,
and described the residue by the general terms, NOT NECESSARY OR PROPER,
it must have happened that the enumeration would comprehend a few of the
excepted powers only; that these would be such as would be least likely
to be assumed or tolerated, because the enumeration would of course
select such as would be least necessary or proper; and that the
unnecessary and improper powers included in the residuum, would be less
forcibly excepted, than if no partial enumeration had been made.
Had the Constitution been silent on this head, there can be no doubt
that all the particular powers requisite as means of executing the
general powers would have resulted to the government, by unavoidable
implication. No axiom is more clearly established in law, or in reason,
than that wherever the end is required, the means are authorized;
wherever a general power to do a thing is given, every particular power
necessary for doing it is included. Had this last method, therefore,
been pursued by the convention, every objection now urged against their
plan would remain in all its plausibility; and the real inconveniency
would be incurred of not removing a pretext which may be seized on
critical occasions for drawing into question the essential powers of the
Union.
If it be asked what is to be the consequence, in case the Congress shall
misconstrue this part of the Constitution, and exercise powers not
warranted by its true meaning, I answer, the same as if they should
misconstrue or enlarge any other power vested in them; as if the general
power had been reduced to particulars, and any one of these were to be
violated; the same, in short, as if the State legislatures should
violate the irrespective constitutional authorities. In the first
instance, the success of the usurpation will depend on the executive and
judiciary departments, which are to expound and give effect to the
legislative acts; and in the last resort a remedy must be obtained from
the people who can, by the election of more faithful representatives,
annul the acts of the usurpers. The truth is, that this ultimate redress
may be more confided in against unconstitutional acts of the federal
than of the State legislatures, for this plain reason, that as every
such act of the former will be an invasion of the rights of the latter,
these will be ever ready to mark the innovation, to sound the alarm to
the people, and to exert their local influence in effecting a change of
federal representatives. There being no such intermediate body between
the State legislatures and the people interested in watching the conduct
of the former, violations of the State constitutions are more likely to
remain unnoticed and unredressed.
2. "This Constitution and the laws of the United States which shall be
made in pursuance thereof, and all treaties made, or which shall be
made, under the authority of the United States, shall be the supreme law
of the land, and the judges in every State shall be bound thereby, any
thing in the constitution or laws of any State to the contrary
notwithstanding."
The indiscreet zeal of the adversaries to the Constitution has betrayed
them into an attack on this part of it also, without which it would have
been evidently and radically defective. To be fully sensible of this, we
need only suppose for a moment that the supremacy of the State
constitutions had been left complete by a saving clause in their favor.
In the first place, as these constitutions invest the State legislatures
with absolute sovereignty, in all cases not excepted by the existing
articles of Confederation, all the authorities contained in the proposed
Constitution, so far as they exceed those enumerated in the
Confederation, would have been annulled, and the new Congress would have
been reduced to the same impotent condition with their predecessors.
In the next place, as the constitutions of some of the States do not
even expressly and fully recognize the existing powers of the
Confederacy, an express saving of the supremacy of the former would, in
such States, have brought into question every power contained in the
proposed Constitution.
In the third place, as the constitutions of the States differ much from
each other, it might happen that a treaty or national law, of great and
equal importance to the States, would interfere with some and not with
other constitutions, and would consequently be valid in some of the
States, at the same time that it would have no effect in others.
In fine, the world would have seen, for the first time, a system of
government founded on an inversion of the fundamental principles of all
government; it would have seen the authority of the whole society every
where subordinate to the authority of the parts; it would have seen a
monster, in which the head was under the direction of the members.
3. "The Senators and Representatives, and the members of the several
State legislatures, and all executive and judicial officers, both of the
United States and the several States, shall be bound by oath or
affirmation to support this Constitution."
It has been asked why it was thought necessary, that the State
magistracy should be bound to support the federal Constitution, and
unnecessary that a like oath should be imposed on the officers of the
United States, in favor of the State constitutions.
Several reasons might be assigned for the distinction. I content myself
with one, which is obvious and conclusive. The members of the federal
government will have no agency in carrying the State constitutions into
effect. The members and officers of the State governments, on the
contrary, will have an essential agency in giving effect to the federal
Constitution. The election of the President and Senate will depend, in
all cases, on the legislatures of the several States. And the election
of the House of Representatives will equally depend on the same
authority in the first instance; and will, probably, forever be
conducted by the officers, and according to the laws, of the States.
4. Among the provisions for giving efficacy to the federal powers might
be added those which belong to the executive and judiciary departments:
but as these are reserved for particular examination in another place, I
pass them over in this.
We have now reviewed, in detail, all the articles composing the sum or
quantity of power delegated by the proposed Constitution to the federal
government, and are brought to this undeniable conclusion, that no part
of the power is unnecessary or improper for accomplishing the necessary
objects of the Union. The question, therefore, whether this amount of
power shall be granted or not, resolves itself into another question,
whether or not a government commensurate to the exigencies of the Union
shall be established; or, in other words, whether the Union itself shall
be preserved.
PUBLIUS
FEDERALIST No. 45
The Alleged Danger From the Powers of the Union to the State
Governments Considered
For the Independent Fournal.
Saturday, January 26, 1788
MADISON
To the People of the State of New York:
HAVING shown that no one of the powers transferred to the federal
government is unnecessary or improper, the next question to be
considered is, whether the whole mass of them will be dangerous to the
portion of authority left in the several States.
The adversaries to the plan of the convention, instead of considering in
the first place what degree of power was absolutely necessary for the
purposes of the federal government, have exhausted themselves in a
secondary inquiry into the possible consequences of the proposed degree
of power to the governments of the particular States. But if the Union,
as has been shown, be essential to the security of the people of America
against foreign danger; if it be essential to their security against
contentions and wars among the different States; if it be essential to
guard them against those violent and oppressive factions which embitter
the blessings of liberty, and against those military establishments
which must gradually poison its very fountain; if, in a word, the Union
be essential to the happiness of the people of America, is it not
preposterous, to urge as an objection to a government, without which the
objects of the Union cannot be attained, that such a government may
derogate from the importance of the governments of the individual
States? Was, then, the American Revolution effected, was the American
Confederacy formed, was the precious blood of thousands spilt, and the
hard-earned substance of millions lavished, not that the people of
America should enjoy peace, liberty, and safety, but that the government
of the individual States, that particular municipal establishments,
might enjoy a certain extent of power, and be arrayed with certain
dignities and attributes of sovereignty? We have heard of the impious
doctrine in the Old World, that the people were made for kings, not
kings for the people. Is the same doctrine to be revived in the New, in
another shape that the solid happiness of the people is to be sacrificed
to the views of political institutions of a different form? It is too
early for politicians to presume on our forgetting that the public good,
the real welfare of the great body of the people, is the supreme object
to be pursued; and that no form of government whatever has any other
value than as it may be fitted for the attainment of this object. Were
the plan of the convention adverse to the public happiness, my voice
would be, Reject the plan. Were the Union itself inconsistent with the
public happiness, it would be, Abolish the Union. In like manner, as far
as the sovereignty of the States cannot be reconciled to the happiness
of the people, the voice of every good citizen must be, Let the former
be sacrificed to the latter. How far the sacrifice is necessary, has
been shown. How far the unsacrificed residue will be endangered, is the
question before us.
Several important considerations have been touched in the course of
these papers, which discountenance the supposition that the operation of
the federal government will by degrees prove fatal to the State
governments. The more I revolve the subject, the more fully I am
persuaded that the balance is much more likely to be disturbed by the
preponderancy of the last than of the first scale.
We have seen, in all the examples of ancient and modern confederacies,
the strongest tendency continually betraying itself in the members, to
despoil the general government of its authorities, with a very
ineffectual capacity in the latter to defend itself against the
encroachments. Although, in most of these examples, the system has been
so dissimilar from that under consideration as greatly to weaken any
inference concerning the latter from the fate of the former, yet, as the
States will retain, under the proposed Constitution, a very extensive
portion of active sovereignty, the inference ought not to be wholly
disregarded. In the Achaean league it is probable that the federal head
had a degree and species of power, which gave it a considerable likeness
to the government framed by the convention. The Lycian Confederacy, as
far as its principles and form are transmitted, must have borne a still
greater analogy to it. Yet history does not inform us that either of
them ever degenerated, or tended to degenerate, into one consolidated
government. On the contrary, we know that the ruin of one of them
proceeded from the incapacity of the federal authority to prevent the
dissensions, and finally the disunion, of the subordinate authorities.
These cases are the more worthy of our attention, as the external causes
by which the component parts were pressed together were much more
numerous and powerful than in our case; and consequently less powerful
ligaments within would be sufficient to bind the members to the head,
and to each other.
In the feudal system, we have seen a similar propensity exemplified.
Notwithstanding the want of proper sympathy in every instance between
the local sovereigns and the people, and the sympathy in some instances
between the general sovereign and the latter, it usually happened that
the local sovereigns prevailed in the rivalship for encroachments. Had
no external dangers enforced internal harmony and subordination, and
particularly, had the local sovereigns possessed the affections of the
people, the great kingdoms in Europe would at this time consist of as
many independent princes as there were formerly feudatory barons.
The State governments will have the advantage of the Federal government,
whether we compare them in respect to the immediate dependence of the
one on the other; to the weight of personal influence which each side
will possess; to the powers respectively vested in them; to the
predilection and probable support of the people; to the disposition and
faculty of resisting and frustrating the measures of each other.
The State governments may be regarded as constituent and essential parts
of the federal government; whilst the latter is nowise essential to the
operation or organization of the former. Without the intervention of the
State legislatures, the President of the United States cannot be elected
at all. They must in all cases have a great share in his appointment,
and will, perhaps, in most cases, of themselves determine it. The Senate
will be elected absolutely and exclusively by the State legislatures.
Even the House of Representatives, though drawn immediately from the
people, will be chosen very much under the influence of that class of
men, whose influence over the people obtains for themselves an election
into the State legislatures. Thus, each of the principal branches of the
federal government will owe its existence more or less to the favor of
the State governments, and must consequently feel a dependence, which is
much more likely to beget a disposition too obsequious than too
overbearing towards them. On the other side, the component parts of the
State governments will in no instance be indebted for their appointment
to the direct agency of the federal government, and very little, if at
all, to the local influence of its members.
The number of individuals employed under the Constitution of the United
States will be much smaller than the number employed under the
particular States. There will consequently be less of personal influence
on the side of the former than of the latter. The members of the
legislative, executive, and judiciary departments of thirteen and more
States, the justices of peace, officers of militia, ministerial officers
of justice, with all the county, corporation, and town officers, for
three millions and more of people, intermixed, and having particular
acquaintance with every class and circle of people, must exceed, beyond
all proportion, both in number and influence, those of every description
who will be employed in the administration of the federal system.
Compare the members of the three great departments of the thirteen
States, excluding from the judiciary department the justices of peace,
with the members of the corresponding departments of the single
government of the Union; compare the militia officers of three millions
of people with the military and marine officers of any establishment
which is within the compass of probability, or, I may add, of
possibility, and in this view alone, we may pronounce the advantage of
the States to be decisive. If the federal government is to have
collectors of revenue, the State governments will have theirs also. And
as those of the former will be principally on the seacoast, and not very
numerous, whilst those of the latter will be spread over the face of the
country, and will be very numerous, the advantage in this view also lies
on the same side. It is true, that the Confederacy is to possess, and
may exercise, the power of collecting internal as well as external taxes
throughout the States; but it is probable that this power will not be
resorted to, except for supplemental purposes of revenue; that an option
will then be given to the States to supply their quotas by previous
collections of their own; and that the eventual collection, under the
immediate authority of the Union, will generally be made by the
officers, and according to the rules, appointed by the several States.
Indeed it is extremely probable, that in other instances, particularly
in the organization of the judicial power, the officers of the States
will be clothed with the correspondent authority of the Union. Should it
happen, however, that separate collectors of internal revenue should be
appointed under the federal government, the influence of the whole
number would not bear a comparison with that of the multitude of State
officers in the opposite scale. Within every district to which a federal
collector would be allotted, there would not be less than thirty or
forty, or even more, officers of different descriptions, and many of
them persons of character and weight, whose influence would lie on the
side of the State.
The powers delegated by the proposed Constitution to the federal
government, are few and defined. Those which are to remain in the State
governments are numerous and indefinite. The former will be exercised
principally on external objects, as war, peace, negotiation, and foreign
commerce; with which last the power of taxation will, for the most part,
be connected. The powers reserved to the several States will extend to
all the objects which, in the ordinary course of affairs, concern the
lives, liberties, and properties of the people, and the internal order,
improvement, and prosperity of the State.
The operations of the federal government will be most extensive and
important in times of war and danger; those of the State governments, in
times of peace and security. As the former periods will probably bear a
small proportion to the latter, the State governments will here enjoy
another advantage over the federal government. The more adequate,
indeed, the federal powers may be rendered to the national defense, the
less frequent will be those scenes of danger which might favor their
ascendancy over the governments of the particular States.
If the new Constitution be examined with accuracy and candor, it will be
found that the change which it proposes consists much less in the
addition of NEW POWERS to the Union, than in the invigoration of its
ORIGINAL POWERS. The regulation of commerce, it is true, is a new power;
but that seems to be an addition which few oppose, and from which no
apprehensions are entertained. The powers relating to war and peace,
armies and fleets, treaties and finance, with the other more
considerable powers, are all vested in the existing Congress by the
articles of Confederation. The proposed change does not enlarge these
powers; it only substitutes a more effectual mode of administering them.
The change relating to taxation may be regarded as the most important;
and yet the present Congress have as complete authority to REQUIRE of
the States indefinite supplies of money for the common defense and
general welfare, as the future Congress will have to require them of
individual citizens; and the latter will be no more bound than the
States themselves have been, to pay the quotas respectively taxed on
them. Had the States complied punctually with the articles of
Confederation, or could their compliance have been enforced by as
peaceable means as may be used with success towards single persons, our
past experience is very far from countenancing an opinion, that the
State governments would have lost their constitutional powers, and have
gradually undergone an entire consolidation. To maintain that such an
event would have ensued, would be to say at once, that the existence of
the State governments is incompatible with any system whatever that
accomplishes the essential purposes of the Union.
PUBLIUS
FEDERALIST No. 46
The Influence of the State and Federal Governments Compared
From the New York Packet.
Tuesday, January 29, 1788.
MADISON
To the People of the State of New York:
RESUMING the subject of the last paper, I proceed to inquire whether the
federal government or the State governments will have the advantage with
regard to the predilection and support of the people. Notwithstanding
the different modes in which they are appointed, we must consider both
of them as substantially dependent on the great body of the citizens of
the United States. I assume this position here as it respects the first,
reserving the proofs for another place. The federal and State
governments are in fact but different agents and trustees of the people,
constituted with different powers, and designed for different purposes.
The adversaries of the Constitution seem to have lost sight of the
people altogether in their reasonings on this subject; and to have
viewed these different establishments, not only as mutual rivals and
enemies, but as uncontrolled by any common superior in their efforts to
usurp the authorities of each other. These gentlemen must here be
reminded of their error. They must be told that the ultimate authority,
wherever the derivative may be found, resides in the people alone, and
that it will not depend merely on the comparative ambition or address of
the different governments, whether either, or which of them, will be
able to enlarge its sphere of jurisdiction at the expense of the other.
Truth, no less than decency, requires that the event in every case
should be supposed to depend on the sentiments and sanction of their
common constituents.
Many considerations, besides those suggested on a former occasion, seem
to place it beyond doubt that the first and most natural attachment of
the people will be to the governments of their respective States. Into
the administration of these a greater number of individuals will expect
to rise. From the gift of these a greater number of offices and
emoluments will flow. By the superintending care of these, all the more
domestic and personal interests of the people will be regulated and
provided for. With the affairs of these, the people will be more
familiarly and minutely conversant. And with the members of these, will
a greater proportion of the people have the ties of personal
acquaintance and friendship, and of family and party attachments; on the
side of these, therefore, the popular bias may well be expected most
strongly to incline.
Experience speaks the same language in this case. The federal
administration, though hitherto very defective in comparison with what
may be hoped under a better system, had, during the war, and
particularly whilst the independent fund of paper emissions was in
credit, an activity and importance as great as it can well have in any
future circumstances whatever. It was engaged, too, in a course of
measures which had for their object the protection of everything that
was dear, and the acquisition of everything that could be desirable to
the people at large. It was, nevertheless, invariably found, after the
transient enthusiasm for the early Congresses was over, that the
attention and attachment of the people were turned anew to their own
particular governments; that the federal council was at no time the idol
of popular favor; and that opposition to proposed enlargements of its
powers and importance was the side usually taken by the men who wished
to build their political consequence on the prepossessions of their
fellow-citizens.
If, therefore, as has been elsewhere remarked, the people should in
future become more partial to the federal than to the State governments,
the change can only result from such manifest and irresistible proofs of
a better administration, as will overcome all their antecedent
propensities. And in that case, the people ought not surely to be
precluded from giving most of their confidence where they may discover
it to be most due; but even in that case the State governments could
have little to apprehend, because it is only within a certain sphere
that the federal power can, in the nature of things, be advantageously
administered.
The remaining points on which I propose to compare the federal and State
governments, are the disposition and the faculty they may respectively
possess, to resist and frustrate the measures of each other.
It has been already proved that the members of the federal will be more
dependent on the members of the State governments, than the latter will
be on the former. It has appeared also, that the prepossessions of the
people, on whom both will depend, will be more on the side of the State
governments, than of the federal government. So far as the disposition
of each towards the other may be influenced by these causes, the State
governments must clearly have the advantage. But in a distinct and very
important point of view, the advantage will lie on the same side. The
prepossessions, which the members themselves will carry into the federal
government, will generally be favorable to the States; whilst it will
rarely happen, that the members of the State governments will carry into
the public councils a bias in favor of the general government. A local
spirit will infallibly prevail much more in the members of Congress,
than a national spirit will prevail in the legislatures of the
particular States. Every one knows that a great proportion of the errors
committed by the State legislatures proceeds from the disposition of the
members to sacrifice the comprehensive and permanent interest of the
State, to the particular and separate views of the counties or districts
in which they reside. And if they do not sufficiently enlarge their
policy to embrace the collective welfare of their particular State, how
can it be imagined that they will make the aggregate prosperity of the
Union, and the dignity and respectability of its government, the objects
of their affections and consultations? For the same reason that the
members of the State legislatures will be unlikely to attach themselves
sufficiently to national objects, the members of the federal legislature
will be likely to attach themselves too much to local objects. The
States will be to the latter what counties and towns are to the former.
Measures will too often be decided according to their probable effect,
not on the national prosperity and happiness, but on the prejudices,
interests, and pursuits of the governments and people of the individual
States. What is the spirit that has in general characterized the
proceedings of Congress? A perusal of their journals, as well as the
candid acknowledgments of such as have had a seat in that assembly, will
inform us, that the members have but too frequently displayed the
character, rather of partisans of their respective States, than of
impartial guardians of a common interest; that where on one occasion
improper sacrifices have been made of local considerations, to the
aggrandizement of the federal government, the great interests of the
nation have suffered on a hundred, from an undue attention to the local
prejudices, interests, and views of the particular States. I mean not by
these reflections to insinuate, that the new federal government will not
embrace a more enlarged plan of policy than the existing government may
have pursued; much less, that its views will be as confined as those of
the State legislatures; but only that it will partake sufficiently of
the spirit of both, to be disinclined to invade the rights of the
individual States, or the preorgatives of their governments. The motives
on the part of the State governments, to augment their prerogatives by
defalcations from the federal government, will be overruled by no
reciprocal predispositions in the members.
Were it admitted, however, that the Federal government may feel an equal
disposition with the State governments to extend its power beyond the
due limits, the latter would still have the advantage in the means of
defeating such encroachments. If an act of a particular State, though
unfriendly to the national government, be generally popular in that
State and should not too grossly violate the oaths of the State
officers, it is executed immediately and, of course, by means on the
spot and depending on the State alone. The opposition of the federal
government, or the interposition of federal officers, would but inflame
the zeal of all parties on the side of the State, and the evil could not
be prevented or repaired, if at all, without the employment of means
which must always be resorted to with reluctance and difficulty. On the
other hand, should an unwarrantable measure of the federal government be
unpopular in particular States, which would seldom fail to be the case,
or even a warrantable measure be so, which may sometimes be the case,
the means of opposition to it are powerful and at hand. The disquietude
of the people; their repugnance and, perhaps, refusal to co-operate with
the officers of the Union; the frowns of the executive magistracy of the
State; the embarrassments created by legislative devices, which would
often be added on such occasions, would oppose, in any State,
difficulties not to be despised; would form, in a large State, very
serious impediments; and where the sentiments of several adjoining
States happened to be in unison, would present obstructions which the
federal government would hardly be willing to encounter.
But ambitious encroachments of the federal government, on the authority
of the State governments, would not excite the opposition of a single
State, or of a few States only. They would be signals of general alarm.
Every government would espouse the common cause. A correspondence would
be opened. Plans of resistance would be concerted. One spirit would
animate and conduct the whole. The same combinations, in short, would
result from an apprehension of the federal, as was produced by the dread
of a foreign, yoke; and unless the projected innovations should be
voluntarily renounced, the same appeal to a trial of force would be made
in the one case as was made in the other. But what degree of madness
could ever drive the federal government to such an extremity. In the
contest with Great Britain, one part of the empire was employed against
the other. The more numerous part invaded the rights of the less
numerous part. The attempt was unjust and unwise; but it was not in
speculation absolutely chimerical. But what would be the contest in the
case we are supposing? Who would be the parties? A few representatives
of the people would be opposed to the people themselves; or rather one
set of representatives would be contending against thirteen sets of
representatives, with the whole body of their common constituents on the
side of the latter.
The only refuge left for those who prophesy the downfall of the State
governments is the visionary supposition that the federal government may
previously accumulate a military force for the projects of ambition. The
reasonings contained in these papers must have been employed to little
purpose indeed, if it could be necessary now to disprove the reality of
this danger. That the people and the States should, for a sufficient
period of time, elect an uninterupted succession of men ready to betray
both; that the traitors should, throughout this period, uniformly and
systematically pursue some fixed plan for the extension of the military
establishment; that the governments and the people of the States should
silently and patiently behold the gathering storm, and continue to
supply the materials, until it should be prepared to burst on their own
heads, must appear to every one more like the incoherent dreams of a
delirious jealousy, or the misjudged exaggerations of a counterfeit
zeal, than like the sober apprehensions of genuine patriotism.
Extravagant as the supposition is, let it however be made. Let a regular
army, fully equal to the resources of the country, be formed; and let it
be entirely at the devotion of the federal government; still it would
not be going too far to say, that the State governments, with the people
on their side, would be able to repel the danger. The highest number to
which, according to the best computation, a standing army can be carried
in any country, does not exceed one hundredth part of the whole number
of souls; or one twenty-fifth part of the number able to bear arms. This
proportion would not yield, in the United States, an army of more than
twenty-five or thirty thousand men. To these would be opposed a militia
amounting to near half a million of citizens with arms in their hands,
officered by men chosen from among themselves, fighting for their common
liberties, and united and conducted by governments possessing their
affections and confidence. It may well be doubted, whether a militia
thus circumstanced could ever be conquered by such a proportion of
regular troops. Those who are best acquainted with the last successful
resistance of this country against the British arms, will be most
inclined to deny the possibility of it. Besides the advantage of being
armed, which the Americans possess over the people of almost every other
nation, the existence of subordinate governments, to which the people
are attached, and by which the militia officers are appointed, forms a
barrier against the enterprises of ambition, more insurmountable than
any which a simple government of any form can admit of. Notwithstanding
the military establishments in the several kingdoms of Europe, which are
carried as far as the public resources will bear, the governments are
afraid to trust the people with arms. And it is not certain, that with
this aid alone they would not be able to shake off their yokes. But were
the people to possess the additional advantages of local governments
chosen by themselves, who could collect the national will and direct the
national force, and of officers appointed out of the militia, by these
governments, and attached both to them and to the militia, it may be
affirmed with the greatest assurance, that the throne of every tyranny
in Europe would be speedily overturned in spite of the legions which
surround it. Let us not insult the free and gallant citizens of America
with the suspicion, that they would be less able to defend the rights of
which they would be in actual possession, than the debased subjects of
arbitrary power would be to rescue theirs from the hands of their
oppressors. Let us rather no longer insult them with the supposition
that they can ever reduce themselves to the necessity of making the
experiment, by a blind and tame submission to the long train of
insidious measures which must precede and produce it.
The argument under the present head may be put into a very concise form,
which appears altogether conclusive. Either the mode in which the
federal government is to be constructed will render it sufficiently
dependent on the people, or it will not. On the first supposition, it
will be restrained by that dependence from forming schemes obnoxious to
their constituents. On the other supposition, it will not possess the
confidence of the people, and its schemes of usurpation will be easily
defeated by the State governments, who will be supported by the people.
On summing up the considerations stated in this and the last paper, they
seem to amount to the most convincing evidence, that the powers proposed
to be lodged in the federal government are as little formidable to those
reserved to the individual States, as they are indispensably necessary
to accomplish the purposes of the Union; and that all those alarms which
have been sounded, of a meditated and consequential annihilation of the
State governments, must, on the most favorable interpretation, be
ascribed to the chimerical fears of the authors of them.
PUBLIUS
FEDERALIST No. 47
The Particular Structure of the New Government and the
Distribution of Power Among Its Different Parts
For the Independent Journal.
Wednesday, January 30, 1788.
MADISON
To the People of the State of New York:
HAVING reviewed the general form of the proposed government and the
general mass of power allotted to it, I proceed to examine the
particular structure of this government, and the distribution of this
mass of power among its constituent parts.
One of the principal objections inculcated by the more respectable
adversaries to the Constitution, is its supposed violation of the
political maxim, that the legislative, executive, and judiciary
departments ought to be separate and distinct. In the structure of the
federal government, no regard, it is said, seems to have been paid to
this essential precaution in favor of liberty. The several departments
of power are distributed and blended in such a manner as at once to
destroy all symmetry and beauty of form, and to expose some of the
essential parts of the edifice to the danger of being crushed by the
disproportionate weight of other parts.
No political truth is certainly of greater intrinsic value, or is
stamped with the authority of more enlightened patrons of liberty, than
that on which the objection is founded. The accumulation of all powers,
legislative, executive, and judiciary, in the same hands, whether of
one, a few, or many, and whether hereditary, selfappointed, or elective,
may justly be pronounced the very definition of tyranny. Were the
federal Constitution, therefore, really chargeable with the accumulation
of power, or with a mixture of powers, having a dangerous tendency to
such an accumulation, no further arguments would be necessary to inspire
a universal reprobation of the system. I persuade myself, however, that
it will be made apparent to every one, that the charge cannot be
supported, and that the maxim on which it relies has been totally
misconceived and misapplied. In order to form correct ideas on this
important subject, it will be proper to investigate the sense in which
the preservation of liberty requires that the three great departments of
power should be separate and distinct.
The oracle who is always consulted and cited on this subject is the
celebrated Montesquieu. If he be not the author of this invaluable
precept in the science of politics, he has the merit at least of
displaying and recommending it most effectually to the attention of
mankind. Let us endeavor, in the first place, to ascertain his meaning
on this point.
The British Constitution was to Montesquieu what Homer has been to the
didactic writers on epic poetry. As the latter have considered the work
of the immortal bard as the perfect model from which the principles and
rules of the epic art were to be drawn, and by which all similar works
were to be judged, so this great political critic appears to have viewed
the Constitution of England as the standard, or to use his own
expression, as the mirror of political liberty; and to have delivered,
in the form of elementary truths, the several characteristic principles
of that particular system. That we may be sure, then, not to mistake his
meaning in this case, let us recur to the source from which the maxim
was drawn.
On the slightest view of the British Constitution, we must perceive that
the legislative, executive, and judiciary departments are by no means
totally separate and distinct from each other. The executive magistrate
forms an integral part of the legislative authority. He alone has the
prerogative of making treaties with foreign sovereigns, which, when
made, have, under certain limitations, the force of legislative acts.
All the members of the judiciary department are appointed by him, can be
removed by him on the address of the two Houses of Parliament, and form,
when he pleases to consult them, one of his constitutional councils. One
branch of the legislative department forms also a great constitutional
council to the executive chief, as, on another hand, it is the sole
depositary of judicial power in cases of impeachment, and is invested
with the supreme appellate jurisdiction in all other cases. The judges,
again, are so far connected with the legislative department as often to
attend and participate in its deliberations, though not admitted to a
legislative vote.
From these facts, by which Montesquieu was guided, it may clearly be
inferred that, in saying "There can be no liberty where the legislative
and executive powers are united in the same person, or body of
magistrates," or, "if the power of judging be not separated from the
legislative and executive powers," he did not mean that these
departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the
acts of each other. His meaning, as his own words import, and still more
conclusively as illustrated by the example in his eye, can amount to no
more than this, that where the WHOLE power of one department is
exercised by the same hands which possess the WHOLE power of another
department, the fundamental principles of a free constitution are
subverted. This would have been the case in the constitution examined by
him, if the king, who is the sole executive magistrate, had possessed
also the complete legislative power, or the supreme administration of
justice; or if the entire legislative body had possessed the supreme
judiciary, or the supreme executive authority. This, however, is not
among the vices of that constitution. The magistrate in whom the whole
executive power resides cannot of himself make a law, though he can put
a negative on every law; nor administer justice in person, though he has
the appointment of those who do administer it. The judges can exercise
no executive prerogative, though they are shoots from the executive
stock; nor any legislative function, though they may be advised with by
the legislative councils. The entire legislature can perform no
judiciary act, though by the joint act of two of its branches the judges
may be removed from their offices, and though one of its branches is
possessed of the judicial power in the last resort. The entire
legislature, again, can exercise no executive prerogative, though one of
its branches constitutes the supreme executive magistracy, and another,
on the impeachment of a third, can try and condemn all the subordinate
officers in the executive department.
The reasons on which Montesquieu grounds his maxim are a further
demonstration of his meaning. "When the legislative and executive powers
are united in the same person or body," says he, "there can be no
liberty, because apprehensions may arise lest THE SAME monarch or senate
should ENACT tyrannical laws to EXECUTE them in a tyrannical manner."
Again: "Were the power of judging joined with the legislative, the life
and liberty of the subject would be exposed to arbitrary control, for
THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive
power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
Some of these reasons are more fully explained in other passages; but
briefly stated as they are here, they sufficiently establish the meaning
which we have put on this celebrated maxim of this celebrated author.
If we look into the constitutions of the several States, we find that,
notwithstanding the emphatical and, in some instances, the unqualified
terms in which this axiom has been laid down, there is not a single
instance in which the several departments of power have been kept
absolutely separate and distinct. New Hampshire, whose constitution was
the last formed, seems to have been fully aware of the impossibility and
inexpediency of avoiding any mixture whatever of these departments, and
has qualified the doctrine by declaring "that the legislative,
executive, and judiciary powers ought to be kept as separate from, and
independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL
ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE
WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND
AMITY." Her constitution accordingly mixes these departments in several
respects. The Senate, which is a branch of the legislative department,
is also a judicial tribunal for the trial of impeachments. The
President, who is the head of the executive department, is the presiding
member also of the Senate; and, besides an equal vote in all cases, has
a casting vote in case of a tie. The executive head is himself
eventually elective every year by the legislative department, and his
council is every year chosen by and from the members of the same
department. Several of the officers of state are also appointed by the
legislature. And the members of the judiciary department are appointed
by the executive department.
The constitution of Massachusetts has observed a sufficient though less
pointed caution, in expressing this fundamental article of liberty. It
declares "that the legislative department shall never exercise the
executive and judicial powers, or either of them; the executive shall
never exercise the legislative and judicial powers, or either of them;
the judicial shall never exercise the legislative and executive powers,
or either of them." This declaration corresponds precisely with the
doctrine of Montesquieu, as it has been explained, and is not in a
single point violated by the plan of the convention. It goes no farther
than to prohibit any one of the entire departments from exercising the
powers of another department. In the very Constitution to which it is
prefixed, a partial mixture of powers has been admitted. The executive
magistrate has a qualified negative on the legislative body, and the
Senate, which is a part of the legislature, is a court of impeachment
for members both of the executive and judiciary departments. The members
of the judiciary department, again, are appointable by the executive
department, and removable by the same authority on the address of the
two legislative branches. Lastly, a number of the officers of government
are annually appointed by the legislative department. As the appointment
to offices, particularly executive offices, is in its nature an
executive function, the compilers of the Constitution have, in this last
point at least, violated the rule established by themselves.
I pass over the constitutions of Rhode Island and Connecticut, because
they were formed prior to the Revolution, and even before the principle
under examination had become an object of political attention.
The constitution of New York contains no declaration on this subject;
but appears very clearly to have been framed with an eye to the danger
of improperly blending the different departments. It gives,
nevertheless, to the executive magistrate, a partial control over the
legislative department; and, what is more, gives a like control to the
judiciary department; and even blends the executive and judiciary
departments in the exercise of this control. In its council of
appointment members of the legislative are associated with the executive
authority, in the appointment of officers, both executive and judiciary.
And its court for the trial of impeachments and correction of errors is
to consist of one branch of the legislature and the principal members of
the judiciary department.
The constitution of New Jersey has blended the different powers of
government more than any of the preceding. The governor, who is the
executive magistrate, is appointed by the legislature; is chancellor and
ordinary, or surrogate of the State; is a member of the Supreme Court of
Appeals, and president, with a casting vote, of one of the legislative
branches. The same legislative branch acts again as executive council of
the governor, and with him constitutes the Court of Appeals. The members
of the judiciary department are appointed by the legislative department
and removable by one branch of it, on the impeachment of the other.
According to the constitution of Pennsylvania, the president, who is the
head of the executive department, is annually elected by a vote in which
the legislative department predominates. In conjunction with an
executive council, he appoints the members of the judiciary department,
and forms a court of impeachment for trial of all officers, judiciary as
well as executive. The judges of the Supreme Court and justices of the
peace seem also to be removable by the legislature; and the executive
power of pardoning in certain cases, to be referred to the same
department. The members of the executive council are made EX-OFFICIO
justices of peace throughout the State.
In Delaware, the chief executive magistrate is annually elected by the
legislative department. The speakers of the two legislative branches are
vice-presidents in the executive department. The executive chief, with
six others, appointed, three by each of the legislative branches
constitutes the Supreme Court of Appeals; he is joined with the
legislative department in the appointment of the other judges.
Throughout the States, it appears that the members of the legislature
may at the same time be justices of the peace; in this State, the
members of one branch of it are EX-OFFICIO justices of the peace; as are
also the members of the executive council. The principal officers of the
executive department are appointed by the legislative; and one branch of
the latter forms a court of impeachments. All officers may be removed on
address of the legislature.
Maryland has adopted the maxim in the most unqualified terms; declaring
that the legislative, executive, and judicial powers of government ought
to be forever separate and distinct from each other. Her constitution,
notwithstanding, makes the executive magistrate appointable by the
legislative department; and the members of the judiciary by the
executive department.
The language of Virginia is still more pointed on this subject. Her
constitution declares, "that the legislative, executive, and judiciary
departments shall be separate and distinct; so that neither exercise the
powers properly belonging to the other; nor shall any person exercise
the powers of more than one of them at the same time, except that the
justices of county courts shall be eligible to either House of Assembly."
Yet we find not only this express exception, with respect to the
members of the irferior courts, but that the chief magistrate, with his
executive council, are appointable by the legislature; that two members
of the latter are triennially displaced at the pleasure of the
legislature; and that all the principal offices, both executive and
judiciary, are filled by the same department. The executive prerogative
of pardon, also, is in one case vested in the legislative department.
The constitution of North Carolina, which declares "that the
legislative, executive, and supreme judicial powers of government ought
to be forever separate and distinct from each other," refers, at the
same time, to the legislative department, the appointment not only of
the executive chief, but all the principal officers within both that and
the judiciary department.
In South Carolina, the constitution makes the executive magistracy
eligible by the legislative department. It gives to the latter, also,
the appointment of the members of the judiciary department, including
even justices of the peace and sheriffs; and the appointment of officers
in the executive department, down to captains in the army and navy of
the State.
In the constitution of Georgia, where it is declared "that the
legislative, executive, and judiciary departments shall be separate and
distinct, so that neither exercise the powers properly belonging to the
other," we find that the executive department is to be filled by
appointments of the legislature; and the executive prerogative of pardon
to be finally exercised by the same authority. Even justices of the
peace are to be appointed by the legislature.
In citing these cases, in which the legislative, executive, and
judiciary departments have not been kept totally separate and distinct,
I wish not to be regarded as an advocate for the particular
organizations of the several State governments. I am fully aware that
among the many excellent principles which they exemplify, they carry
strong marks of the haste, and still stronger of the inexperience, under
which they were framed. It is but too obvious that in some instances the
fundamental principle under consideration has been violated by too great
a mixture, and even an actual consolidation, of the different powers;
and that in no instance has a competent provision been made for
maintaining in practice the separation delineated on paper. What I have
wished to evince is, that the charge brought against the proposed
Constitution, of violating the sacred maxim of free government, is
warranted neither by the real meaning annexed to that maxim by its
author, nor by the sense in which it has hitherto been understood in
America. This interesting subject will be resumed in the ensuing paper.
PUBLIUS
FEDERALIST No. 48
These Departments Should Not Be So Far Separated as to Have No
Constitutional Control Over Each Other
From the New York Packet.
Friday, February 1, 1788.
MADISON
To the People of the State of New York:
IT WAS shown in the last paper that the political apothegm there
examined does not require that the legislative, executive, and judiciary
departments should be wholly unconnected with each other. I shall
undertake, in the next place, to show that unless these departments be
so far connected and blended as to give to each a constitutional control
over the others, the degree of separation which the maxim requires, as
essential to a free government, can never in practice be duly
maintained.
It is agreed on all sides, that the powers properly belonging to one of
the departments ought not to be directly and completely administered by
either of the other departments. It is equally evident, that none of
them ought to possess, directly or indirectly, an overruling influence
over the others, in the administration of their respective powers. It
will not be denied, that power is of an encroaching nature, and that it
ought to be effectually restrained from passing the limits assigned to
it. After discriminating, therefore, in theory, the several classes of
power, as they may in their nature be legislative, executive, or
judiciary, the next and most difficult task is to provide some practical
security for each, against the invasion of the others. What this
security ought to be, is the great problem to be solved.
Will it be sufficient to mark, with precision, the boundaries of these
departments, in the constitution of the government, and to trust to
these parchment barriers against the encroaching spirit of power? This
is the security which appears to have been principally relied on by the
compilers of most of the American constitutions. But experience assures
us, that the efficacy of the provision has been greatly overrated; and
that some more adequate defense is indispensably necessary for the more
feeble, against the more powerful, members of the government. The
legislative department is everywhere extending the sphere of its
activity, and drawing all power into its impetuous vortex.
The founders of our republics have so much merit for the wisdom which
they have displayed, that no task can be less pleasing than that of
pointing out the errors into which they have fallen. A respect for
truth, however, obliges us to remark, that they seem never for a moment
to have turned their eyes from the danger to liberty from the overgrown
and all-grasping prerogative of an hereditary magistrate, supported and
fortified by an hereditary branch of the legislative authority. They
seem never to have recollected the danger from legislative usurpations,
which, by assembling all power in the same hands, must lead to the same
tyranny as is threatened by executive usurpations.
In a government where numerous and extensive prerogatives are placed in
the hands of an hereditary monarch, the executive department is very
justly regarded as the source of danger, and watched with all the
jealousy which a zeal for liberty ought to inspire. In a democracy,
where a multitude of people exercise in person the legislative
functions, and are continually exposed, by their incapacity for regular
deliberation and concerted measures, to the ambitious intrigues of their
executive magistrates, tyranny may well be apprehended, on some
favorable emergency, to start up in the same quarter. But in a
representative republic, where the executive magistracy is carefully
limited; both in the extent and the duration of its power; and where the
legislative power is exercised by an assembly, which is inspired, by a
supposed influence over the people, with an intrepid confidence in its
own strength; which is sufficiently numerous to feel all the passions
which actuate a multitude, yet not so numerous as to be incapable of
pursuing the objects of its passions, by means which reason prescribes;
it is against the enterprising ambition of this department that the
people ought to indulge all their jealousy and exhaust all their
precautions.
The legislative department derives a superiority in our governments from
other circumstances. Its constitutional powers being at once more
extensive, and less susceptible of precise limits, it can, with the
greater facility, mask, under complicated and indirect measures, the
encroachments which it makes on the co-ordinate departments. It is not
unfrequently a question of real nicety in legislative bodies, whether
the operation of a particular measure will, or will not, extend beyond
the legislative sphere. On the other side, the executive power being
restrained within a narrower compass, and being more simple in its
nature, and the judiciary being described by landmarks still less
uncertain, projects of usurpation by either of these departments would
immediately betray and defeat themselves. Nor is this all: as the
legislative department alone has access to the pockets of the people,
and has in some constitutions full discretion, and in all a prevailing
influence, over the pecuniary rewards of those who fill the other
departments, a dependence is thus created in the latter, which gives
still greater facility to encroachments of the former.
I have appealed to our own experience for the truth of what I advance on
this subject. Were it necessary to verify this experience by particular
proofs, they might be multiplied without end. I might find a witness in
every citizen who has shared in, or been attentive to, the course of
public administrations. I might collect vouchers in abundance from the
records and archives of every State in the Union. But as a more concise,
and at the same time equally satisfactory, evidence, I will refer to the
example of two States, attested by two unexceptionable authorities.
The first example is that of Virginia, a State which, as we have seen,
has expressly declared in its constitution, that the three great
departments ought not to be intermixed. The authority in support of it
is Mr. Jefferson, who, besides his other advantages for remarking the
operation of the government, was himself the chief magistrate of it. In
order to convey fully the ideas with which his experience had impressed
him on this subject, it will be necessary to quote a passage of some
length from his very interesting Notes on the State of Virginia, p.
195. "All the powers of government, legislative, executive, and
judiciary, result to the legislative body. The concentrating these in
the same hands, is precisely the definition of despotic government. It
will be no alleviation, that these powers will be exercised by a
plurality of hands, and not by a single one. One hundred and
seventy-three despots would surely be as oppressive as one. Let those
who doubt it, turn their eyes on the republic of Venice. As little will
it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM
was not the government we fought for; but one which should not only be
founded on free principles, but in which the powers of government should
be so divided and balanced among several bodies of magistracy, as that
no one could transcend their legal limits, without being effectually
checked and restrained by the others. For this reason, that convention
which passed the ordinance of government, laid its foundation on this
basis, that the legislative, executive, and judiciary departments should
be separate and distinct, so that no person should exercise the powers
of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED
BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members
were left dependent on the legislative for their subsistence in office,
and some of them for their continuance in it. If, therefore, the
legislature assumes executive and judiciary powers, no opposition is
likely to be made; nor, if made, can be effectual; because in that case
they may put their proceedings into the form of acts of Assembly, which
will render them obligatory on the other branches. They have
accordingly, IN MANY instances, DECIDED RIGHTS which should have been
left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE,
DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND
FAMILIAR."
The other State which I shall take for an example is Pennsylvania; and
the other authority, the Council of Censors, which assembled in the
years 1783 and 1784. A part of the duty of this body, as marked out by
the constitution, was "to inquire whether the constitution had been
preserved inviolate in every part; and whether the legislative and
executive branches of government had performed their duty as guardians
of the people, or assumed to themselves, or exercised, other or greater
powers than they are entitled to by the constitution. " In the execution
of this trust, the council were necessarily led to a comparison of both
the legislative and executive proceedings, with the constitutional
powers of these departments; and from the facts enumerated, and to the
truth of most of which both sides in the council subscribed, it appears
that the constitution had been flagrantly violated by the legislature in
a variety of important instances.
A great number of laws had been passed, violating, without any apparent
necessity, the rule requiring that all bills of a public nature shall be
previously printed for the consideration of the people; although this is
one of the precautions chiefly relied on by the constitution against
improper acts of legislature.
The constitutional trial by jury had been violated, and powers assumed
which had not been delegated by the constitution.
Executive powers had been usurped.
The salaries of the judges, which the constitution expressly requires to
be fixed, had been occasionally varied; and cases belonging to the
judiciary department frequently drawn within legislative cognizance and
determination.
Those who wish to see the several particulars falling under each of
these heads, may consult the journals of the council, which are in
print. Some of them, it will be found, may be imputable to peculiar
circumstances connected with the war; but the greater part of them may
be considered as the spontaneous shoots of an ill-constituted
government.
It appears, also, that the executive department had not been innocent of
frequent breaches of the constitution. There are three observations,
however, which ought to be made on this head: FIRST, a great proportion
of the instances were either immediately produced by the necessities of
the war, or recommended by Congress or the commander-in-chief; SECOND,
in most of the other instances, they conformed either to the declared or
the known sentiments of the legislative department; THIRD, the
executive department of Pennsylvania is distinguished from that of the
other States by the number of members composing it. In this respect, it
has as much affinity to a legislative assembly as to an executive
council. And being at once exempt from the restraint of an individual
responsibility for the acts of the body, and deriving confidence from
mutual example and joint influence, unauthorized measures would, of
course, be more freely hazarded, than where the executive department is
administered by a single hand, or by a few hands.
The conclusion which I am warranted in drawing from these observations
is, that a mere demarcation on parchment of the constitutional limits of
the several departments, is not a sufficient guard against those
encroachments which lead to a tyrannical concentration of all the powers
of government in the same hands.
PUBLIUS
FEDERALIST No. 49
Method of Guarding Against the Encroachments of Any One Department of
Government by Appealing to the People Through a Convention
For the Independent Journal.
Saturday, February 2, 1788.
MADISON
To the People of the State of New York:
THE author of the "Notes on the State of Virginia," quoted in the last
paper, has subjoined to that valuable work the draught of a
constitution, which had been prepared in order to be laid before a
convention, expected to be called in 1783, by the legislature, for the
establishment of a constitution for that commonwealth. The plan, like
every thing from the same pen, marks a turn of thinking, original,
comprehensive, and accurate; and is the more worthy of attention as it
equally displays a fervent attachment to republican government and an
enlightened view of the dangerous propensities against which it ought to
be guarded. One of the precautions which he proposes, and on which he
appears ultimately to rely as a palladium to the weaker departments of
power against the invasions of the stronger, is perhaps altogether his
own, and as it immediately relates to the subject of our present
inquiry, ought not to be overlooked.
His proposition is, "that whenever any two of the three branches of
government shall concur in opinion, each by the voices of two thirds of
their whole number, that a convention is necessary for altering the
constitution, or CORRECTING BREACHES OF IT, a convention shall be called
for the purpose."
As the people are the only legitimate fountain of power, and it is from
them that the constitutional charter, under which the several branches
of government hold their power, is derived, it seems strictly consonant
to the republican theory, to recur to the same original authority, not
only whenever it may be necessary to enlarge, diminish, or new-model the
powers of the government, but also whenever any one of the departments
may commit encroachments on the chartered authorities of the others. The
several departments being perfectly co-ordinate by the terms of their
common commission, none of them, it is evident, can pretend to an
exclusive or superior right of settling the boundaries between their
respective powers; and how are the encroachments of the stronger to be
prevented, or the wrongs of the weaker to be redressed, without an
appeal to the people themselves, who, as the grantors of the
commissions, can alone declare its true meaning, and enforce its
observance?
There is certainly great force in this reasoning, and it must be allowed
to prove that a constitutional road to the decision of the people ought
to be marked out and kept open, for certain great and extraordinary
occasions. But there appear to be insuperable objections against the
proposed recurrence to the people, as a provision in all cases for
keeping the several departments of power within their constitutional
limits.
In the first place, the provision does not reach the case of a
combination of two of the departments against the third. If the
legislative authority, which possesses so many means of operating on the
motives of the other departments, should be able to gain to its interest
either of the others, or even one third of its members, the remaining
department could derive no advantage from its remedial provision. I do
not dwell, however, on this objection, because it may be thought to be
rather against the modification of the principle, than against the
principle itself.
In the next place, it may be considered as an objection inherent in the
principle, that as every appeal to the people would carry an implication
of some defect in the government, frequent appeals would, in a great
measure, deprive the government of that veneration which time bestows on
every thing, and without which perhaps the wisest and freest governments
would not possess the requisite stability. If it be true that all
governments rest on opinion, it is no less true that the strength of
opinion in each individual, and its practical influence on his conduct,
depend much on the number which he supposes to have entertained the same
opinion. The reason of man, like man himself, is timid and cautious when
left alone, and acquires firmness and confidence in proportion to the
number with which it is associated. When the examples which fortify
opinion are ANCIENT as well as NUMEROUS, they are known to have a double
effect. In a nation of philosophers, this consideration ought to be
disregarded. A reverence for the laws would be sufficiently inculcated
by the voice of an enlightened reason. But a nation of philosophers is
as little to be expected as the philosophical race of kings wished for
by Plato. And in every other nation, the most rational government will
not find it a superfluous advantage to have the prejudices of the
community on its side.
The danger of disturbing the public tranquillity by interesting too
strongly the public passions, is a still more serious objection against
a frequent reference of constitutional questions to the decision of the
whole society. Notwithstanding the success which has attended the
revisions of our established forms of government, and which does so much
honor to the virtue and intelligence of the people of America, it must
be confessed that the experiments are of too ticklish a nature to be
unnecessarily multiplied. We are to recollect that all the existing
constitutions were formed in the midst of a danger which repressed the
passions most unfriendly to order and concord; of an enthusiastic
confidence of the people in their patriotic leaders, which stifled the
ordinary diversity of opinions on great national questions; of a
universal ardor for new and opposite forms, produced by a universal
resentment and indignation against the ancient government; and whilst no
spirit of party connected with the changes to be made, or the abuses to
be reformed, could mingle its leaven in the operation. The future
situations in which we must expect to be usually placed, do not present
any equivalent security against the danger which is apprehended.
But the greatest objection of all is, that the decisions which would
probably result from such appeals would not answer the purpose of
maintaining the constitutional equilibrium of the government. We have
seen that the tendency of republican governments is to an aggrandizement
of the legislative at the expense of the other departments. The appeals
to the people, therefore, would usually be made by the executive and
judiciary departments. But whether made by one side or the other, would
each side enjoy equal advantages on the trial? Let us view their
different situations. The members of the executive and judiciary
departments are few in number, and can be personally known to a small
part only of the people. The latter, by the mode of their appointment,
as well as by the nature and permanency of it, are too far removed from
the people to share much in their prepossessions. The former are
generally the objects of jealousy, and their administration is always
liable to be discolored and rendered unpopular. The members of the
legislative department, on the other hand, are numberous. They are
distributed and dwell among the people at large. Their connections of
blood, of friendship, and of acquaintance embrace a great proportion of
the most influential part of the society. The nature of their public
trust implies a personal influence among the people, and that they are
more immediately the confidential guardians of the rights and liberties
of the people. With these advantages, it can hardly be supposed that the
adverse party would have an equal chance for a favorable issue.
But the legislative party would not only be able to plead their cause
most successfully with the people. They would probably be constituted
themselves the judges. The same influence which had gained them an
election into the legislature, would gain them a seat in the convention.
If this should not be the case with all, it would probably be the case
with many, and pretty certainly with those leading characters, on whom
every thing depends in such bodies. The convention, in short, would be
composed chiefly of men who had been, who actually were, or who expected
to be, members of the department whose conduct was arraigned. They would
consequently be parties to the very question to be decided by them.
It might, however, sometimes happen, that appeals would be made under
circumstances less adverse to the executive and judiciary departments.
The usurpations of the legislature might be so flagrant and so sudden,
as to admit of no specious coloring. A strong party among themselves
might take side with the other branches. The executive power might be in
the hands of a peculiar favorite of the people. In such a posture of
things, the public decision might be less swayed by prepossessions in
favor of the legislative party. But still it could never be expected to
turn on the true merits of the question. It would inevitably be
connected with the spirit of pre-existing parties, or of parties
springing out of the question itself. It would be connected with persons
of distinguished character and extensive influence in the community. It
would be pronounced by the very men who had been agents in, or opponents
of, the measures to which the decision would relate. The PASSIONS,
therefore, not the REASON, of the public would sit in judgment. But it
is the reason, alone, of the public, that ought to control and regulate
the government. The passions ought to be controlled and regulated by the
government.
We found in the last paper, that mere declarations in the written
constitution are not sufficient to restrain the several departments
within their legal rights. It appears in this, that occasional appeals
to the people would be neither a proper nor an effectual provision for
that purpose. How far the provisions of a different nature contained in
the plan above quoted might be adequate, I do not examine. Some of them
are unquestionably founded on sound political principles, and all of
them are framed with singular ingenuity and precision.
PUBLIUS
FEDERALIST No. 50
Periodical Appeals to the People Considered
From the New York Packet.
Tuesday, February 5, 1788.
MADISON
To the People of the State of New York:
IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the
people, which are liable to the objections urged against them,
PERIODICAL appeals are the proper and adequate means of PREVENTING AND
CORRECTING INFRACTIONS OF THE CONSTITUTION.
It will be attended to, that in the examination of these expedients, I
confine myself to their aptitude for ENFORCING the Constitution, by
keeping the several departments of power within their due bounds,
without particularly considering them as provisions for ALTERING the
Constitution itself. In the first view, appeals to the people at fixed
periods appear to be nearly as ineligible as appeals on particular
occasions as they emerge. If the periods be separated by short
intervals, the measures to be reviewed and rectified will have been of
recent date, and will be connected with all the circumstances which tend
to vitiate and pervert the result of occasional revisions. If the
periods be distant from each other, the same remark will be applicable
to all recent measures; and in proportion as the remoteness of the
others may favor a dispassionate review of them, this advantage is
inseparable from inconveniences which seem to counterbalance it. In the
first place, a distant prospect of public censure would be a very feeble
restraint on power from those excesses to which it might be urged by the
force of present motives. Is it to be imagined that a legislative
assembly, consisting of a hundred or two hundred members, eagerly bent
on some favorite object, and breaking through the restraints of the
Constitution in pursuit of it, would be arrested in their career, by
considerations drawn from a censorial revision of their conduct at the
future distance of ten, fifteen, or twenty years? In the next place, the
abuses would often have completed their mischievous effects before the
remedial provision would be applied. And in the last place, where this
might not be the case, they would be of long standing, would have taken
deep root, and would not easily be extirpated.
The scheme of revising the constitution, in order to correct recent
breaches of it, as well as for other purposes, has been actually tried
in one of the States. One of the objects of the Council of Censors which
met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire,
"whether the constitution had been violated, and whether the legislative
and executive departments had encroached upon each other." This
important and novel experiment in politics merits, in several points of
view, very particular attention. In some of them it may, perhaps, as a
single experiment, made under circumstances somewhat peculiar, be
thought to be not absolutely conclusive. But as applied to the case
under consideration, it involves some facts, which I venture to remark,
as a complete and satisfactory illustration of the reasoning which I
have employed.
First. It appears, from the names of the gentlemen who composed the
council, that some, at least, of its most active members had also been
active and leading characters in the parties which pre-existed in the
State.
Second. It appears that the same active and leading members of the
council had been active and influential members of the legislative and
executive branches, within the period to be reviewed; and even patrons
or opponents of the very measures to be thus brought to the test of the
constitution. Two of the members had been vice-presidents of the State,
and several other members of the executive council, within the seven
preceding years. One of them had been speaker, and a number of others
distinguished members, of the legislative assembly within the same
period.
Third. Every page of their proceedings witnesses the effect of all these
circumstances on the temper of their deliberations. Throughout the
continuance of the council, it was split into two fixed and violent
parties. The fact is acknowledged and lamented by themselves. Had this
not been the case, the face of their proceedings exhibits a proof
equally satisfactory. In all questions, however unimportant in
themselves, or unconnected with each other, the same names stand
invariably contrasted on the opposite columns. Every unbiased observer
may infer, without danger of mistake, and at the same time without
meaning to reflect on either party, or any individuals of either party,
that, unfortunately, PASSION, not REASON, must have presided over their
decisions. When men exercise their reason coolly and freely on a variety
of distinct questions, they inevitably fall into different opinions on
some of them. When they are governed by a common passion, their
opinions, if they are so to be called, will be the same.
Fourth. It is at least problematical, whether the decisions of this body
do not, in several instances, misconstrue the limits prescribed for the
legislative and executive departments, instead of reducing and limiting
them within their constitutional places.
Fifth. I have never understood that the decisions of the council on
constitutional questions, whether rightly or erroneously formed, have
had any effect in varying the practice founded on legislative
constructions. It even appears, if I mistake not, that in one instance
the contemporary legislature denied the constructions of the council,
and actually prevailed in the contest.
This censorial body, therefore, proves at the same time, by its
researches, the existence of the disease, and by its example, the
inefficacy of the remedy.
This conclusion cannot be invalidated by alleging that the State in
which the experiment was made was at that crisis, and had been for a
long time before, violently heated and distracted by the rage of party.
Is it to be presumed, that at any future septennial epoch the same State
will be free from parties? Is it to be presumed that any other State, at
the same or any other given period, will be exempt from them? Such an
event ought to be neither presumed nor desired; because an extinction of
parties necessarily implies either a universal alarm for the public
safety, or an absolute extinction of liberty.
Were the precaution taken of excluding from the assemblies elected by
the people, to revise the preceding administration of the government,
all persons who should have been concerned with the government within
the given period, the difficulties would not be obviated. The important
task would probably devolve on men, who, with inferior capacities, would
in other respects be little better qualified. Although they might not
have been personally concerned in the administration, and therefore not
immediately agents in the measures to be examined, they would probably
have been involved in the parties connected with these measures, and
have been elected under their auspices.
PUBLIUS