The Federalist Papers (1787-1789)
Federalist Essays No.41 - No. 44
The proposed plan of government should be considered based on the amount of power it has and the way the power is structured. Does the new plan of government have too much power?
Critics claim that the new form of government has too much power, yet they overlook the fact that any government that attempts to protect the common good must have some abuses.
The proposed plan of government has the power of security against foreign danger. Not only is this the most important goal of a civil society, but essential to the American union. No one will disagree with granting this power.
The question of raising troops, fleets and maintaining both in peace and war has been discussed elsewhere. The only way to prohibit troops in times of peace would be to stop all hostile nations from making those same preparations. However, history demonstrates that standing armies can be destructive to the liberties of the people. Wise nations will provide the security while guarding against the dangers. The proposed plan of government accomplishes this because it unites the people in a land far from other European nations. A disunited America would not provide such security.
The best possible protection against standing armies is to limit the amount of money granted to them, and the U.S. Constitution does this. The Constitution has provided the most effectual guards against the dangers of standing armies in the form of a review of funds every two years. A strong united America is the only way to protect against a disunited number of states, each supported by standing armies.
The source of the United States' naval strength lies in the union as well. New York should be especially anxious to receive protection of her ports by a navy. Under the current plan of government there is no protection to commerce or attack by plunderers.
The power to tax and borrow money is also critical. The power to tax goods from other countries brings in a significant amount of revenue to the government. However, this amount of revenue will change as the population of America grows and begins to manufacture its own goods. A nation that provides for its own needs does not import many items and this will reduce the source of revenue from imposts.
The power to establish relations with foreign powers is also placed in the central government. If the United States is to be a nation in any way, it should certainly respect other nations by providing for uniform and well-regulated foreign policies.
The power to conduct foreign relations has been greatly improved because under the Articles of Confederation, all foreign treaties were subject to approval by the states and the Congress only would receive the highest class of foreign ministers, the ambassadors, and ignore the consuls and diplomats that most frequently visit a foreign nation.
The Constitution improves upon the power of the central government to punish piracies and felonies on the high seas because the Articles did not specify how to deal with offenses against the laws of nations.
The Constitution includes a clause that will stop the slave trade in 1808. This is a great advantage of the proposed plan of government because such a barbaric practice should not be part of a modern government. Critics oppose this clause on two grounds. One, that the Constitution openly tolerates an illicit practice and two, that it is included only to prevent emigrations from Europe to America.
The power of the central government to regulate the commerce between states is necessary both to prevent abuses by states that levy imposts against neighboring states, and to prevent smuggling and other forms of illegal trade in response to high state-imposed tariffs. In addition, the power of the central government to regulate foreign commerce would be ineffective without the power to regulate interstate commerce. There are many historical examples demonstrate the need of a supreme authority to regulate the trade within states.
Under the U.S. Constitution, the central government gains the power to set the value of both U.S. and foreign coin, thereby enhancing its previous power to simply coin money and providing a uniform system of value.
The rules of naturalization, previously left to independent states under the Articles of Confederation, will become uniform. A citizen will no longer be able to gain citizenship in each state by gaining citizenship in the most lenient state for naturalization.
The central government retains the right to establish uniform laws of bankruptcy because those laws are critical to the regulation of commerce. The requirement that states must respect the public acts, records and judicial proceedings of other states is critical to the relations between neighboring states. The establishment of post roads holds no possible negative outcome and will only benefit all the states.
The establishment of a uniform system of copyrights and patents will serve both the public good and the individual creators.
It is critical for the seat of central government to be under the authority of the central government. The state that cedes its land must agree to willingly. If the central government operated from within a state's jurisdiction, the central government could potentially become too dependent on the state's authority. The central government would then be subordinate to the state.
The central government must have ultimate authority over the forts and magazines established within states. Public money is used for their maintenance and it would not be proper for places used for the protection of all the states to be subject to the will of a single state.
Because treason can only be committed against the United States, the central government of the United States must be the one to punish for treason. The U.S. Constitution improves upon the Articles' approach to treason because it specifies a definition of treason and a requirement of a particular kind of proof.
The Articles of Confederation overlooked establishing a process by which new states could join the union, and the U.S. Constitution has established a means to do this. The ultimate authority over territories rests with the central government, and this too is established by the Constitution.
The central government must have the authority to require that every state in the union be a form of republican government. Historically, there have been problems when a confederacy contained states with monarchs. And, while it may not be necessary to enforce them upon the states, which would choose that form of government anyway, this provides central government protection for the states.
The central government has the authority to protect states from domestic violence. Critics question whether such a protection is necessary in a republic in which the minority will never have the power to subvert the whole, and the majority has the right to change the system. There are dangers, though, in a minority that through its own quest for power entices others who crave violence. Thus, they might border on a majority of numbers for the wrong reasons, and not in actuality be a majority in thought.
The fact that a superior power has the authority to repress rebellions will discourage such rebellions. It is not always clear which side is just in an insurrection. The central government's authority to intervene allows an objective judge to the conflict.
The process of amending the Constitution allows for future situations that cannot be foreseen, prevents hastily changing items based on the whims of a new administration, and places the power of change both in the hands of the central and the state governments.
The process of ratification places the authority to approve of the government solidly in the hands of the people, not the states. This emphasizes that the authority for government comes directly from the people. Requiring a unanimous approval by all 13 states would have made the majority subject to the opinions of the minority.
The Constitution can replace the Articles, although the Articles were agreed to be all 13 states, because of the manner of disrespect that many of the states had towards their compact with the confederacy. As a rule in foreign compacts and treaties, a breach of one article of a treaty serves to make it null and void. The states have in many cases disobeyed the Articles, and as such have already through their actions made it null and void.
In the hypothetical case that only 9 states concur on the ratification of the U.S. Constitution, the other 4 must be dealt with in favor of the common interest in order to establish re-union as moderately and cautiously as possible.
States will be restricted in some of the powers granted to them under the Articles of Confederation. States are prohibited from printing bills of credit because some of them have acted irresponsibly in distributing paper money, and have put the financial situation of the entire nation in danger. States are restricted from certain types of law making that not only hurt the rights of the people but also create instability that can be harmful to republican government. States are also restricted from levying imposts, and this has already been addressed as part of the necessity of the central government to regulate foreign trade.
The authority of the central government to make all other laws necessary to carry out its other powers is one of the most criticized clauses in the constitution, but it is a crucial part of the document and it brings power to it. Had they not explicitly stated this power, it still would have been taken by the central government as need be. And, if the legislative branch oversteps its authority under authority of this clause, the executive and judicial branches have the authority to check that power.
The Constitution is stated to be the supreme law of the land. If this had not been the case, the new Constitution would have been just as ineffective as the old with no authority to act as a superior power to the unified states. Some state constitutions do not explicitly recognize the authority of the central government, and this statement makes that recognition obvious. Finally, because the state constitutions are so different from each other, this statement allows for an easy resolution to conflicting state laws.
Critics have wondered why the state officials must take an oath to support the Constitution, while the federal officials are not required to support the state constitutions. The most obvious response is that the federal officials will have no responsibility for enforcing the state constitutions.
No part of the U.S. Constitution grants an improper amount of power for accomplishing the goals of the union. The question really is, whether this form of government established to protect the union will be established -- will the union be preserved?
Article I of the U.S. Constitution includes all of the enumerated powers of the legislative branch, as well as the elastic clause that allows for the stretching of the central legislative authority when needed. Article IV describes the subordinate relationship of the states to that central authority. This portion of The Federalist provides a thorough description and justification of all of those powers as granted by the Constitution. It is significant that this portion was written by James Madison, since of the three Federalist authors he was the sole one present for the entire Constitutional Convention and could best provide the rationale given for each item.
The Federalist essays that cover the rights granted to the central government really focus on the rights granted to the legislative branch of the central government. In a republic, the strongest branch of the government must be the one that most closely represents the people: the legislative branch. Within the U.S. Constitution itself, there are very many specific powers attributed to the legislative branch, and only general powers attributed to the other two branches. The purpose of Article I in the Constitution is not only to enumerate these powers, but also to position all the powers of the central government as superior to those of the states.
Publius grants that states have lost many of the powers they had formerly enjoyed under the Articles of Confederation, but reminds the reader that these powers could actually serve to destroy the union as too much state power created too much state competition. Article IV of the Constitution describes the inter-state relations as well as the extent of state power. In particular, states will be restricted from issuing their own paper money, establishing laws that go against the common guide for their own purposes and in regulating their own commerce. States are still empowered to tax the citizens of their own state and to determine the type of republican government used in their state as long as their actions do not interfere with the Supreme Law of the Land as articulated in the U.S. Constitution.
The Supreme Law of the Land clause that appears in Article VI only serves to affirm what has already been established between Article I and Article IV. The Constitution grants superior authority to the central government in matters of foreign policy, raising armies, coining money, naturalization, interstate commerce, uniform regulations on bankruptcy, patents and copyrights, administration of new territories and admittance of new states, a postal system, and determining guilt in cases of treason. The Constitution ensures that a state government will not become superior to the central government by providing a National capital governed by the central government, by ensuring that national forts are wholly the territory of the central government, and by not subjecting the central government to requisitioning funds from the states.
In clearly describing each of the powers granted to the central government, Publius then concludes that none of these powers go beyond what is necessary to sustain the union that has already proven to be a necessity for the common defense and protection of individual liberty. Even the inclusion of the "elastic clause" at the end of Article I is justified, according to Federalists, because it provided the best security against unforeseen future circumstances, and in no way threatened the rights of the people
Stating that Congress has the authority to make any laws necessary to carry out any of its clearly enumerate duties, the elastic clause contributed to an extended reach of the national government over the years. Anti-federalists feared such open-ended power in the hands of the central government. However, federalists argued since the people controlled the legislature, and could determine exactly which powers were extended, they would never risk extending power in any way that would be destructive to their rights.
The U.S. Constitution placed the legislative branch strongly in control of the general welfare of the nation and in a position of authority over state governments. The power of the legislative branch, and the central government in general, was justified by the strong presence of the people in the branch with the greatest degree of power.
The changes made to the Articles of Confederation were not to be viewed as usurpations of the people's power, but as an enhancement of the power of the people and the reduction of the power of individual state governments. The proposed plan of government would not only be theoretically better as a representative government, but would also improve the happiness and prosperity of the people by being better equipped to provide for the common defense and the public good.