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Federalist No. 44
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Restrictions on the Authority of the Several
States
From the New York Packet. Friday, January 25, 1788.
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." (see
Constitution 1.10.1)
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." (see
Constitution 1.10.2)
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." (see
Constitution 1.8.18)
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."
(see
Constitution 6.1.2)
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." (see
Constitution 6.1.3)
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.
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