General View of the Powers Conferred by The Constitution



For the Independent Journal.



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. Some, who have not denied the necessity of

the power of taxation, have grounded a very fierce attack against the

Constitution, on the language in which it is defined. It has been urged

and echoed, that the power “to lay and collect taxes, duties, imposts,

and excises, to pay the debts, and provide for the common defense and

general welfare of the United States,” amounts to an unlimited

commission to exercise every power which may be alleged to be necessary

for the common defense or general welfare. No stronger proof could be

given of the distress under which these writers labor for objections,

than their stooping to such a misconstruction. Had no other enumeration

or definition of the powers of the Congress been found in the

Constitution, than the general expressions just cited, the authors of

the objection might have had some color for it; though it would have

been difficult to find a reason for so awkward a form of describing an

authority to legislate in all possible cases. A power to destroy the

freedom of the press, the trial by jury, or even to regulate the course

of descents, or the forms of conveyances, must be very singularly

expressed by the terms “to raise money for the general welfare. “But

what color can the objection have, when a specification of the objects

alluded to by these general terms immediately follows, and is not even

separated by a longer pause than a semicolon? If the different parts of

the same instrument ought to be so expounded, as to give meaning to

every part which will bear it, shall one part of the same sentence be

excluded altogether from a share in the meaning; and shall the more

doubtful and indefinite terms be retained in their full extent, and the

clear and precise expressions be denied any signification whatsoever?

For what purpose could the enumeration of particular powers be

inserted, if these and all others were meant to be included in the

preceding general power? Nothing is more natural nor common than first

to use a general phrase, and then to explain and qualify it by a

recital of particulars. But the idea of an enumeration of particulars

which neither explain nor qualify the general meaning, and can have no

other effect than to confound and mislead, is an absurdity, which, as

we are reduced to the dilemma of charging either on the authors of the

objection or on the authors of the Constitution, we must take the

liberty of supposing, had not its origin with the latter. The objection

here is the more extraordinary, as it appears that the language used by

the convention is a copy from the articles of Confederation. The

objects of the Union among the States, as described in article third,

are “their common defense, security of their liberties, and mutual and

general welfare. “ The terms of article eighth are still more

identical: “All charges of war and all other expenses that shall be

incurred for the common defense or general welfare, and allowed by the

United States in Congress, shall be defrayed out of a common treasury,”

etc. A similar language again occurs in article ninth. Construe either

of these articles by the rules which would justify the construction put

on the new Constitution, and they vest in the existing Congress a power

to legislate in all cases whatsoever.



But what would have been thought of that assembly, if, attaching

themselves to these general expressions, and disregarding the

specifications which ascertain and limit their import, they had

exercised an unlimited power of providing for the common defense and

general welfare? I appeal to the objectors themselves, whether they

would in that case have employed the same reasoning in justification of

Congress as they now make use of against the convention. How difficult

it is for error to escape its own condemnation!



PUBLIUS.









THE FEDERALIST.