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 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."