as founded on legal axioms. The one is, that every part of the
expression ought, if possible, to be allowed some meaning, and be made
to conspire to some common end. The other is, that where the several
parts cannot be made to coincide, the less important should give way to
the more important part; the means should be sacrificed to the end,
rather than the end to the means. Suppose, then, that the expressions
defining the authority of the convention were irreconcilably at
variance with each other; that a NATIONAL and ADEQUATE GOVERNMENT could
not possibly, in the judgment of the convention, be affected by
ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part
of the definition ought to have been embraced, and which rejected?
Which was the more important, which the less important part? Which the
end; which the means? Let the most scrupulous expositors of delegated
powers; let the most inveterate objectors against those exercised by
the convention, answer these questions. Let them declare, whether it
was of most importance to the happiness of the people of America, that
the articles of Confederation should be disregarded, and an adequate
government be provided, and the Union preserved; or that an adequate
government should be omitted, and the articles of Confederation
preserved. Let them declare, whether the preservation of these articles
was the end, for securing which a reform of the government was to be
introduced as the means; or whether the establishment of a government,
adequate to the national happiness, was the end at which these articles
themselves originally aimed, and to which they ought, as insufficient
means, to have been sacrificed. But is it necessary to suppose that
these expressions are absolutely irreconcilable to each other; that no
ALTERATIONS or PROVISIONS in THE ARTICLES OF THE CONFEDERATION could
possibly mould them into a national and adequate government; into such
a government as has been proposed by the convention? No stress, it is
presumed, will, in this case, be laid on the TITLE; a change of that
could never be deemed an exercise of ungranted power. ALTERATIONS in
the body of the instrument are expressly authorized. NEW PROVISIONS
therein are also expressly authorized. Here then is a power to change
the title; to insert new articles; to alter old ones. Must it of
necessity be admitted that this power is infringed, so long as a part
of the old articles remain? Those who maintain the affirmative ought at
least to mark the boundary between authorized and usurped innovations;
between that degree of change which lies within the compass of
ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a
TRANSMUTATION of the government. Will it be said that the alterations
ought not to have touched the substance of the Confederation? The
States would never have appointed a convention with so much solemnity,
nor described its objects with so much latitude, if some SUBSTANTIAL
reform had not been in contemplation. Will it be said that the
FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview
of the convention, and ought not to have been varied? I ask, What are
these principles? Do they require that, in the establishment of the
Constitution, the States should be regarded as distinct and independent
sovereigns? They are so regarded by the Constitution proposed. Do they
require that the members of the government should derive their
appointment from the legislatures, not from the people of the States?
One branch of the new government is to be appointed by these
legislatures; and under the Confederation, the delegates to Congress
MAY ALL be appointed immediately by the people, and in two States[1]
are actually so appointed. Do they require that the powers of the
government should act on the States, and not immediately on
individuals? In some instances, as has been shown, the powers of the
new government will act on the States in their collective characters.
In some instances, also, those of the existing government act
immediately on individuals. In cases of capture; of piracy; of the post
office; of coins, weights, and measures; of trade with the Indians; of
claims under grants of land by different States; and, above all, in the
case of trials by courts-marshal in the army and navy, by which death
may be inflicted without the intervention of a jury, or even of a civil
magistrate; in all these cases the powers of the Confederation operate
immediately on the persons and interests of individual citizens. Do
these fundamental principles require, particularly, that no tax should
be levied without the intermediate agency of the States? The
Confederation itself authorizes a direct tax, to a certain extent, on
the post office. The power of coinage has been so construed by Congress
as to levy a tribute immediately from that source also. But
pretermitting these instances, was it not an acknowledged object of the
convention and the universal expectation of the people, that the
regulation of trade should be submitted to the general government in
such a form as would render it an immediate source of general revenue?
Had not Congress repeatedly recommended this measure as not
inconsistent with the fundamental principles of the Confederation? Had
not every State but one; had not New York herself, so far complied with
the plan of Congress as to recognize the PRINCIPLE of the innovation?
Do these principles, in fine, require that the powers of the general
government should be limited, and that, beyond this limit, the States
should be left in possession of their sovereignty and independence? We
have seen that in the new government, as in the old, the general powers
are limited; and that the States, in all unenumerated cases, are left
in the enjoyment of their sovereign and independent jurisdiction. The
truth is, that the great principles of the Constitution proposed by the
convention may be considered less as absolutely new, than as the
expansion of principles which are found in the articles of
Confederation. The misfortune under the latter system has been, that
these principles are so feeble and confined as to justify all the
charges of inefficiency which have been urged against it, and to
require a degree of enlargement which gives to the new system the
aspect of an entire transformation of the old. In one particular it is
admitted that the convention have departed from the tenor of their
commission. Instead of reporting a plan requiring the confirmation OF
THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is
to be confirmed by the PEOPLE, and may be carried into effect by NINE
STATES ONLY. It is worthy of remark that this objection, though the
most plausible, has been the least urged in the publications which have
swarmed against the convention. The forbearance can only have proceeded
from an irresistible conviction of the absurdity of subjecting the fate
of twelve States to the perverseness or corruption of a thirteenth;
from the example of inflexible opposition given by a MAJORITY of one
sixtieth of the people of America to a measure approved and called for
by the voice of twelve States, comprising fifty-nine sixtieths of the
people an example still fresh in the memory and indignation of every
citizen who has felt for the wounded honor and prosperity of his
country. As this objection, therefore, has been in a manner waived by
those who have criticised the powers of the convention, I dismiss it
without further observation. The THIRD point to be inquired into is,
how far considerations of duty arising out of the case itself could
have supplied any defect of regular authority. In the preceding
inquiries the powers of the convention have been analyzed and tried
with the same rigor, and by the same rules, as if they had been real
and final powers for the establishment of a Constitution for the United
States. We have seen in what manner they have borne the trial even on
that supposition. It is time now to recollect that the powers were
merely advisory and recommendatory; that they were so meant by the
States, and so understood by the convention; and that the latter have
accordingly planned and proposed a Constitution which is to be of no
more consequence than the paper on which it is written, unless it be
stamped with the approbation of those to whom it is addressed. This
reflection places the subject in a point of view altogether different,
and will enable us to judge with propriety of the course taken by the
convention. Let us view the ground on which the convention stood. It
may be collected from their proceedings, that they were deeply and
unanimously impressed with the crisis, which had led their country
almost with one voice to make so singular and solemn an experiment for
correcting the errors of a system by which this crisis had been
produced; that they were no less deeply and unanimously convinced that
such a reform as they have proposed was absolutely necessary to effect
the purposes of their appointment. It could not be unknown to them that
the hopes and expectations of the great body of citizens, throughout
this great empire, were turned with the keenest anxiety to the event of
their deliberations. They had every reason to believe that the contrary
sentiments agitated the minds and bosoms of every external and internal
foe to the liberty and prosperity of the United States. They had seen
in the origin and progress of the experiment, the alacrity with which
the PROPOSITION, made by a single State (Virginia), towards a partial
amendment of the Confederation, had been attended to and promoted. They
had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW
States, convened at Annapolis, of recommending a great and critical
object, wholly foreign to their commission, not only justified by the
public opinion, but actually carried into effect by twelve out of the
thirteen States. They had seen, in a variety of instances, assumptions
by Congress, not only of recommendatory, but of operative, powers,
warranted, in the public estimation, by occasions and objects
infinitely less urgent than those by which their conduct was to be
governed. They must have reflected, that in all great changes of
established governments, forms ought to give way to substance; that a
rigid adherence in such cases to the former, would render nominal and
nugatory the transcendent and precious right of the people to “abolish
or alter their governments as to them shall seem most likely to effect
their safety and happiness,”[2] since it is impossible for the people
spontaneously and universally to move in concert towards their object;
and it is therefore essential that such changes be instituted by some
INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and
respectable citizen or number of citizens. They must have recollected
that it was by this irregular and assumed privilege of proposing to the
people plans for their safety and happiness, that the States were first
united against the danger with which they were threatened by their
ancient government; that committees and congresses were formed for
concentrating their efforts and defending their rights; and that
CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the
constitutions under which they are now governed; nor could it have been
forgotten that no little ill-timed scruples, no zeal for adhering to
ordinary forms, were anywhere seen, except in those who wished to
indulge, under these masks, their secret enmity to the substance
contended for. They must have borne in mind, that as the plan to be
framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the
disapprobation of this supreme authority would destroy it forever; its
approbation blot out antecedent errors and irregularities. It might
even have occurred to them, that where a disposition to cavil
prevailed, their neglect to execute the degree of power vested in them,
and still more their recommendation of any measure whatever, not
warranted by their commission, would not less excite animadversion,
than a recommendation at once of a measure fully commensurate to the
national exigencies. Had the convention, under all these impressions,
and in the midst of all these considerations, instead of exercising a
manly confidence in their country, by whose confidence they had been so
peculiarly distinguished, and of pointing out a system capable, in
their judgment, of securing its happiness, taken the cold and sullen
resolution of disappointing its ardent hopes, of sacrificing substance
to forms, of committing the dearest interests of their country to the
uncertainties of delay and the hazard of events, let me ask the man who
can raise his mind to one elevated conception, who can awaken in his
bosom one patriotic emotion, what judgment ought to have been
pronounced by the impartial world, by the friends of mankind, by every
virtuous citizen, on the conduct and character of this assembly? Or if
there be a man whose propensity to condemn is susceptible of no
control, let me then ask what sentence he has in reserve for the twelve
States who USURPED THE POWER of sending deputies to the convention, a
body utterly unknown to their constitutions; for Congress, who
recommended the appointment of this body, equally unknown to the
Confederation; and for the State of New York, in particular, which
first urged and then complied with this unauthorized interposition? But
that the objectors may be disarmed of every pretext, it shall be
granted for a moment that the convention were neither authorized by
their commission, nor justified by circumstances in proposing a
Constitution for their country: does it follow that the Constitution
ought, for that reason alone, to be rejected? If, according to the
noble precept, it be lawful to accept good advice even from an enemy,
shall we set the ignoble example of refusing such advice even when it
is offered by our friends? The prudent inquiry, in all cases, ought
surely to be, not so much FROM WHOM the advice comes, as whether the
advice be GOOD. The sum of what has been here advanced and proved is,
that the charge against the convention of exceeding their powers,
except in one instance little urged by the objectors, has no foundation
to support it; that if they had exceeded their powers, they were not
only warranted, but required, as the confidential servants of their
country, by the circumstances in which they were placed, to exercise
the liberty which they assume; and that finally, if they had violated
both their powers and their obligations, in proposing a Constitution,
this ought nevertheless to be embraced, if it be calculated to
accomplish the views and happiness of the people of America. How far
this character is due to the Constitution, is the subject under
investigation.
PUBLIUS.
[1] Connecticut and Rhode Island.
[2] Declaration of Independence.
THE FEDERALIST.
No. XLI.
General View of the Powers Conferred by The Constitution
For the Independent Journal.
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.