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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.