FEDERALIST No. 44

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 lessinformed 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