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 less-informed 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.
THE FEDERALIST.
No. XLV.
The Alleged Danger From the Powers of the Union to the State
Governments Considered
For the Independent Journal.
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.