Summary and Analysis
Section VII: General Powers: Federalists No. 41-46 (Madison)
This section of six chapters deals with most of the over-all powers to be granted to the national government under the proposed Constitution. The specific powers of the legislature, executive, and judiciary are discussed later.
In Chapter 41, the proposed constitution should be considered from several general points of view. The first concerned the extent of power to be vested in the government.
In previous essays, Publius had already shown, said Madison, that extensive powers for the national government were "necessary means of attaining a necessary end." Critics kept contending that such extensive powers were too broad, unnecessary, inconvenient, and liable to abuse. Madison denied this.
Certainly, the national government should have unlimited power to raise armies and equip fleets for self-defense. Madison repeated Hamilton's argument that the country was so situated that a large standing army, an institution always dangerous to popular liberties, would not be necessary, so that the nation would not be "crushed between standing armies and perpetual taxes. . . . The power of regulating and calling forth the militia has been already sufficiently vindicated and explained."
It was also necessary that the national government have unlimited power in levying and borrowing money, as explained before. The government's revenue-raising power should not be restricted to "external" taxes alone, as many critics contended.
In Chapter 42, the second general view of the proposed constitution should consider the government's power to regulate relations with foreign nations, that is, to make treaties, to send and receive ambassadors and lesser diplomatic officers, to punish piracies and other felonies on the high seas, and to regulate foreign commerce, "including a power to prohibit the importation of slaves after the year 1808, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations."
It would have been well, said Madison, if the proposed constitution had ordered an immediate stop to the slave trade instead of putting it off till 1808. Even so, it was a "great point gained in favor of humanity, that a period of twenty years may terminate for ever . . . a traffic which has so long and so loudly upbraided the barbarism of modern policy" and that, in the interim, the government would considerably discourage that traffic.
Some critics, Madison noted, were attempting to pervert this provision into an objection against the Constitution by representing it, on the one hand, "as a criminal toleration of an illicit practice, and on the other, as calculated to prevent voluntary and beneficial emigrations from Europe to America." Such misinterpretations deserved no answer.
A third classification of the powers to be exercised by the proposed government came under the head of its authority to regulate commerce among the states and with Indian tribes, coin money, regulate its value and that of foreign currencies, provide for the punishment of counterfeiting, establish a standard of weights and measures, set up uniform rules for naturalization and bankruptcy, prescribe the manner in which all public records should be kept, and establish post offices and post roads. The desirability of giving the national government the power to do these things was obvious, said Madison, and needed no elaboration.
As to the power of regulating commerce among the states, and the prohibition that the states were not to erect tariff barriers against one another, this free interstate commerce would correct many inequities. Certain commercial states could no longer levy tribute on others. The Indian trade could be regulated better by the national government than by the individual states whose practices varied. The same was true of the rules of naturalization, for which the states had set varying and often conflicting standards.
In Chapter 43, Madison listed nine powers, which he labeled "miscellaneous." The first on Madison's list, and one of the more interesting, was the power "to promote the progress of science and useful arts, by securing for a limited time, to authors and inventors, the exclusive right, to their respective writings and discoveries." Madison noted that the copyright of authors had long been judged to be a right under common law in Britain. Such copyrights, or patents, should be extended to protect and encourage inventors.
Another of the powers would be the national government's right to exclusive legislation over lands purchased from the states for the erection of forts, arsenals, dockyards, and other needful structures. Similar authority would be exercised over the district, not exceeding ten miles square, which was to be chosen as the seat of government, the national capital (later named the District of Columbia).
Other important miscellaneous powers included the right to define and punish treason, to admit new states into the union, to guarantee to every state a republican form of government, and to lay down the rules for amending the Constitution.
In Chapter 44, a fifth classification of powers consisted of certain restrictions imposed on the authority of the states. No state was to enter into any treaty, alliance, or confederation; or coin money, issue bills of credit, pass any law impairing the obligation of contracts, "or grant any title of nobility." No state, without the consent of Congress, was to lay any imposts or duties on foreign imports and exports, or lay any duty on tonnage, or keep troops or ships of war in times of peace.
A sixth classification consisted of several powers and provisions designed to give effect to all the rest. One such provision gave the national government the power to make all laws deemed "necessary and proper for carrying into execution" all its other powers. No part of the proposed constitution, Madison observed, was being assailed "with more intemperance" by Anti-Federalists, who objected to the blanket phrase "necessary and proper." They wanted specifications. That was impossible, Madison replied. Had the Constitutional Convention attempted to specify the "particular" powers necessary for implementing the Constitution, that would have involved a "complete digest of laws on every subject to which the Constitution relates."
Taking higher ground, Madison declared: "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."
Another restriction on the states was salutary. As the measures adopted and the treaties signed by the national government were to be the supreme law of the land, that law was to be binding on all state judges, no matter what the constitution or laws of any state might be.
Also, the law requiring all federal officials to take an oath to support the Constitution was to be extended to include state officers and all members of state legislatures. State officials would be essential in giving effect to the federal Constitution. The election of the president and the United States Senate would depend in all cases upon the state legislatures.
In Chapter 45, would the powers of the national government be dangerous to the authority of the states? Critics said they would be; Madison said not. Under the Constitution, the states would retain a "very extensive portion of active sovereignty." Without the "intervention" of state legislatures, the president could not be elected. The United States Senate would be elected "absolutely and exclusively" by the state legislatures. The House of Representatives, though elected by the people, would be chosen very much under the influence of those men who had risen to become members of state legislatures.
The national government would employ far fewer persons than the state governments in the aggregate. Consequently, the personal influence of national employees would be less than that of state employees, who would also be closer to the people.
The powers to be delegated to the national government were few and defined, while those retained by the states were numerous and indefinite. The operations of the national government would be most extensive in times of war and danger; those of the states, in times of peace and security. The changes proposed in the constitution consisted "much less in the addition Of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS." The regulation of interstate commerce was a new power, to be sure, but few seemed to object to that.
In Chapter 46, the author next asked whether the national government or the state governments would have the advantage in gaining the support of the people. The state governments would, he argued, for they would take care of the more domestic and personal interests of the people. A greater number of individuals could expect to rise to office in state governments to enjoy the salaries and "emoluments" thereof.
If the national government ever became disposed to extend its power beyond due limits and raised a standing army to carry out its designs, that army, in relation to the total population, could not exceed 30,000 men. On the other hand, the combined militias of the states would total some 500,000 men, and American militiamen had proved what they could do by defeating British regulars during the Revolution. The states would have nothing to fear if they joined the union. There was no danger of state governments being annihilated.
In this series of essays Madison was clear in his arguments that the new national government should have "unlimited" power in raising military forces for self-defense, in levying taxes and borrowing money, in dealing with foreign nations, in regulating interstate commerce and the Indian trade, in setting up uniform rules for naturalization and bankruptcy, and in establishing post offices, post roads, and other improvements.
In support of the provision that the new government should have the exclusive right to legislate for the national capital district (not yet designated), Madison declared (Chapter 43) that if it were otherwise, the "public authority might be insulted and its proceedings be interrupted, with impunity." As things have turned out, this provision was not a wise one. The residents of Washington, D.C., were deprived of the right to vote, even for municipal officers. (Congress still legislates for the city and as Congress directs its attention to national affairs, it has little time or disposition to deal with local affairs.)
Madison's defense (Chapter 44) of the Constitutional Convention's uninstructed action in scrapping the Articles of Confederation and drafting a whole new constitution was, to say the least, rather slippery and sophistical — quite at variance with the legal doctrine he had been preaching.