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.
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.