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.