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. “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.









THE FEDERALIST.