The Easy Federalist

The Federalist 41:

Written by James Madison

The Constitution presented by the convention can be looked at from two angles. The first regards the amount of power given to the government and the limitations set in place for the states. The second looks at how the power is divided among the branches of the government.

When considering the first issue, two important questions arise: 1. Is any of the power given to the federal government unnecessary or improper? 2. Could all of this power be a threat to the authority of the individual states?

Does the general government have more power than it should have? This is the first question.

It is clear that those who disagree with the government’s power have not thought about how this power is necessary, they mainly focus on the negative externalities that unavoidably result from pursuing necessary ends. Smart people will understand that no perfect solution exists, good action comes with some mixture of bad, and that we ought pursue the greater good rather than an unattainable perfect good. These people will see that when power is granted, the first point to decide is whether the power is necessary, and the next point is how to best guard against the inevitable negative consequences that may come with such a decision.

In order for us to make a correct judgment on this, we should review the powers confirmed on the national government and separate them into six different classes: 1. Security from foreign danger; 2. Foreign affairs; 3. Maintaining harmony between states; 4. Miscellaneous public-good tasks; 5. Restraining the states from bad actions; 6. Making sure all these powers are effective.

The first group of powers includes declaring war, granting letters of marque to enable private ships to act as privateers, organizing armies and fleets, regulating the militia; and borrowing and collecting money.

Security from foreign danger is one of the first purposes of civil society. It is an essential object of the American union. The powers needed for attaining it are necessary and must be provided to federal bodies.

Is the power of declaring war necessary? Nobody will say no, and thus it is unnecessary to build an argument. The existing confederation already amply establishes this power.

Is the power of raising armies and equipping fleets necessary? This is part of the same power, it is part of being able to defend ourselves.

But was it necessary to give an indefinite power of raising troops and equipping fleets, in both peace as well as in war?

This has already been extensively discussed elsewhere to merit discussing it here. The answer indeed seems to be so obvious as to hardly need much discussion. It would not be right to limit the power to defend ourselves if we can’t limit the power of other nations to attack us. If a federal constitution could stop other countries from aggressing, maybe then it could make sense to stop the government from using too much power to protect us.

How can a nation refrain from preparing for war during peace, unless it can guarantee that potential enemies are also refraining from such preparations? A nation’s security measures should be proportionate to the threat and capability of a potential attack from enemies. Attempting to place legal or constitutional limits on a nation’s ability to defend itself is futile. Self-preservation is a fundamental impulse that will override such barriers. Not only is it futile to impose constitutional restrictions on defense, but doing so can introduce harmful precedents. These precedents could lead to power grabs or other negative outcomes in the future. If a nation keeps a standing army ready for offensive action, it forces peaceful nations within its sphere of influence to similarly prepare for conflict, as demonstrated by the fifteenth century. Charles VII initiated a standing army and all Europe followed. Had the other nations not done the same, all Europe would have been conquered by a single universal monarch. Rome’s organized and experienced military was able to conquer other nations despite their courage and enthusiasm for battle.

While military strength has its advantages, it also comes with significant costs. In the case of Rome, its military successes ultimately undermined its freedoms. Similarly, in Europe, liberties have often been compromised for the sake of maintaining military establishments. A standing army is a double-edged sword, at the same time necessary and dangerous. On the smallest scales, it has its drawbacks, and on the largest scales, it may be fatal. On any scale, it should be addressed with precaution. A sensible approach is for a nation to balance these factors carefully. While not ruling out any means of ensuring its safety, a nation should strive to minimize both the need for a standing force and the associated risks to its liberties.

• Discussion: How do you view the modern relationship between the military and liberty of the populace?

The proposed U.S. Constitution clearly embodies the careful balance between security and liberty. The strength and unity provided by the Constitution eliminate any reasonable justification for maintaining a large, potentially dangerous standing army. A united America, even without a large army, is argued to be more daunting to foreign powers than a divided America with a large military force. Earlier, we remarked that a certain European nation’s liberties were preserved because it had no justification for a large standing army. Great Britain, due to its geographical features and naval power, has never needed to maintain a large peacetime military establishment, preserving its liberties; America’s geographical distance from other powerful nations offers similar protection. So long as the states are united, a large military would be unnecessary, but this security advantage comes solely from being a united nation; the breakdown of this unity would inaugurate a very different, and likely worse, situation. If the union dissolves, the resulting separate states or confederacies would likely emulate historical examples of military buildup, like Charles VII in Europe. The military build-up would occur for the same reasons it has historically: fear, ambition, and the quest for security. America would lose its unique advantages and instead resemble the militarized and divided states of Europe. Liberty would be eroded by the twin pressures of large militaries and the taxes needed to support them. America’s situation would be worse than Europe’s if it were to dissolve its union, as Europe’s problems are contained within Europe itself. They don’t have outside powers exacerbating their internal divisions to the same degree, and these geopolitical challenges add to internal divisions.

The severe consequences of dissolving the union can’t be overstated or discussed too frequently. Anyone who values peace, country, and liberty should continually keep in mind the importance of maintaining the American union. This will enable them to appropriately appreciate and work to preserve it.

After ensuring the stability of the union, the next best protective measure against the dangers of a standing army is to limit the time period for which funds can be allocated to it, which the Constitution has done. It is often compared and criticized that in Britain, an annual vote is needed to sustain a standing army, whereas the U.S. Constitution lengthened its critical period to two years. But the criticism is flawed, since the British constitution doesn’t actually set a hard limit on the funding period, while the American constitution does set a maximum two-year limit.

If the argument from the British system had been stated honestly, it would have recognized that while the British constitution doesn’t impose a formal limit on the funding term for the army, parliament has traditionally chosen to limit it to one year. In Great Britain, where the House of Commons is elected with longer terms, less democratic representation, and more corruption; if they can be trusted with the power to make appropriations to the army for an indefinite term, but without daring to do so past one year, then it should be far less concerning to trust the more democratic American system with a two-year term.

Bad causes often reveal themselves. The opposition’s tactics have consistently proven this point. Of all their blunders, none is more striking than their attempts to concern the public with standing armies. This attempt has inadvertently brought increased scrutiny to the issue, making people realize that the Constitution actually contains strong protections against the dangers of standing armies. Without a strong federal constitution, America could splinter into multiple states or confederacies, each with its own standing army, leading to even greater dangers. These multiple standing armies would become increasingly burdensome and threatening to individual liberties, whereas a single, united government can maintain a necessary military presence that is both manageable and less threatening to freedoms.

The clear need for a navy safeguards this part of the Constitution from the criticism that other areas have faced. It is indeed a blessing that a union will be the only source of maritime strength and thus a source of security from dangers abroad. In this respect, our situation parallels the insular advantage of Great Britain. Happily, naval forces designed to protect against foreign threats, cannot easily used against domestic liberties.

Those living on the Atlantic coast have an immediate concern for naval security, as they are the first line of vulnerability to maritime threats. Past safety is not attributed to effective governance but to transient and unreliable factors. New York is an especially vulnerable state due to its extensive sea coast, island district, and the navigable river that penetrates it. If conflict erupts in Europe and spills over to the Atlantic, the states bordering the ocean will face inevitable threats. In such a case, safety would be almost miraculous, given the current lack of a strong centralized defense. Even if individual states could muster resources to defend themselves, the effort might well consume the very assets they aim to protect.

The power of regulating and activating the militia has already been sufficiently justified and explained.

The power to collect and borrow money is intrinsically tied to national defense and they should thus be considered together. The necessity of this power has also been rigorously analyzed and validated as necessary, both in the scope and manner outlined by the constitution. I will address one additional argument from those who believe that taxation should only be applied to imported goods. It cannot be doubted that taxation on imports is, and will continue to be, a crucial revenue stream. But solely on this type of taxation is flawed, as the revenue from foreign commerce can fluctuate and does not align with population growth and, by extension, the growing needs of the nation. In an agrarian economy, the need for imported manufactured goods will grow with the population. As domestic manufacturing develops, the need for imported goods will decline, even as the population rises. In future stages of economic development, a country might import raw materials to manufacture goods for export. Here, tariffs would be counterproductive, and incentives might be needed instead. A lasting system of government must be flexible enough to adapt to these economic shifts and complexities.

While some people do not dispute the need for the power to tax, they criticize the Constitution based on the way this power is described. They argue that the phrasing “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” in the constitution essentially grants the government unlimited power. Critics are desperately searching for flaws in the constitution if they are resorting to such a strained interpretation of its text.

If there had been nothing else in the Constitution other than the general statement mentioned above, then the people who argued against it could have had some justification for their argument, but it would be strange for such sweeping powers to be described in such a narrow, awkward way. It would have been tough to explain why the power to limit freedom of the press, trial by jury, or control the process of inheritance and transfers of property would all be described by the phrase “raise money for the general welfare.”

What color can the objection have when a description of the things meant in general terms follows right away, with no pause longer than a semicolon? It’s illogical to focus solely on the vague terms while ignoring the specific powers that follow; all parts of a legal document should work in harmony to convey its full meaning. For what purpose would enumerating specific powers be inserted if they were already included in a preceding general power? It’s common practice to begin with a general statement and then clarify it with specific examples, undermining the critics’ objection. The notion of listing specifics that neither clarify nor limit the general statement, and that would have no other effect than to mislead, is absurd. Such a nonsensical interpretation could not have been the intent of the Constitution’s authors.

The language in question in the Constitution is not new but rather borrowed from the Articles of Confederation, making the criticism even more puzzling; the “common defense and general welfare” is consistent across multiple articles in the Articles of Confederation. If critics apply their logic to the Articles of Confederation, they would have to conclude that the existing Congress also has unlimited powers, an interpretation not commonly held. The inconsistency in the critics’ reasoning ultimately condemns their own arguments.

The Federalist 42:

Written by James Madison

The second class of powers given to the federal government consist of the ability to regulate foreign affairs: to make treaties; to send and receive ambassadors, ministers, and consuls; to regulate the laws of the high seas and international law; to regulate foreign commerce including the importation of slaves after 1808; and to tax ten dollars per slave to discourage such importations.

This class of powers forms an obvious and essential branch of the federal government. If we are to be one nation in any respect, it clearly ought to be in respect to other nations.

The power to make treaties and send and receive diplomats is self-explanatory. Both of them exist already in the Articles of Confederation except that this new Constitution removes the limitation that allowed states to overrule treaties, which could undermine international agreements. The new Constitution added the clear authority to appoint other types of public ministers and consuls, in addition to ambassadors, which was not as explicitly stated in the Articles of Confederation. The term “ambassador” refers to the highest-ranking diplomats. The Articles of Confederation seemed to imply that only ambassadors could be appointed, which was not practical since the United States might need to send different grades of diplomatic representatives, not just ambassadors. No interpretation of the term “ambassador” under the Articles of Confederation included consuls, yet it has been found useful to employ these lesser grades of diplomats.

When trade treaties agree on the mutual appointment of consuls—those officials who deal with trade issues—these treaties also naturally allow for the presence of foreign consuls in the U.S., as this is part of managing trade agreements. Even without specific treaties, the Articles of Confederation provided a broad authority for the U.S. to send consuls abroad, as it allowed Congress to appoint officers needed to manage the country’s general affairs. However, the Articles did not specify how foreign consuls could operate in the U.S. if their admission was not already agreed upon in a treaty. The Constitutional Convention addressed this oversight by including provisions for the admission of consuls in the new Constitution, which improved on the earlier system. Even the smallest details are important when they prevent unnoticed and incremental encroachments on power. If people were aware of how often Congress had to overstep its powers because of the insufficiencies of the Articles of Confederation, they would be surprised and would see these oversteps as evidence supporting the adoption of the new Constitution. The new Constitution has been carefully crafted to correct not only the glaring problems of the previous system but also the less apparent ones.

The power to define and punish piracy and crime on the high seas and in international law belongs with the federal government and is also a greater improvement on the Articles of Confederation.

Those Articles did not address violations of international law and thus left any state the potential to take actions that could provoke international conflict.

The Articles of Confederation only went as far as setting up courts to try cases of piracy and maritime felonies without providing a detailed definition of these crimes. A definition for felonies on the high seas is needed. The term “felony” is not precisely defined, even in English law, where its meaning can vary significantly. American law should not default to foreign legal standards unless the U.S. legislature has explicitly adopted them. Relying on the various state definitions of “felony” is also impractical—it is not precisely the same in any two states and varies as each state revises their criminal laws. To ensure clarity and uniformity in the legal system, it was necessary and proper for the federal government to have the power to define felonies on the high seas.

The regulation of trade with other countries has been considered from multiple perspectives in previous discussions on the topic. It has been discussed extensively enough that no additional proofs ought be needed here to properly acknowledge such power should belong to the federal government.

No doubt it was wished that the power of prohibiting the importation of slaves was not postpone until the year 1808, it would have been better if it happened immediately. But it’s easy to understand why the law was written in this way. It should be seen as a significant victory for humanity that there is a set twenty-year timeline for ending the slave trade, which has been widely condemned for its cruelty. Hopefully, within the twenty-year period, the federal government’s actions and the leadership of states opposed to the slave trade will inspire the remaining states to cease their participation voluntarily. The unfortunate Africans would be even happier to be equally released from the oppressions of their European brethren!

Some critics to distort the meaning or intent of a specific clause to create an argument against adopting the Constitution. On the one hand, some see it as a toleration of an illegal practice. On the other hand, it is criticized as being designed to hinder free and positive migration from Europe to America. These false interpretations ought not be dignified with a response, but should be seen as examples of the spirit in which those opposed to the Constitution operate.

The third class of powers are those which provide for the harmonious interactions between states.

In this category, we might include restraints on the powers of the state, as well as certain powers of the judicial department, but the former we will treat as a class of their own, and the latter we will examine in detail when we discuss the structure of government.

I will confine myself to review the remaining powers under this third class: to regulate commerce among the states and the Indian tribes, to coin and regulate money, to punish counterfeiting, to fix a standard of weights and measures, to establish rules of naturalization, to uniform bankruptcy laws, to ensure a standard for law and judicial enforcement, and to establish a postal system.

Regulating commerce between states is a clear and known defect of the current Articles of Confederation. In addition to the previous papers, I may add that without federal power to regulate commerce among states, the regulation of international trade would be lacking and ineffective. One of the main goals of federal control over commerce is to protect states that depend on others for trade transit from being unfairly taxed by those states. If individual states could control trade passing through them, it’s anticipated that they would impose tariffs that burden the producers (exporters) and consumers (importers). History and human nature suggest that if states could impose such tariffs, it would lead to ongoing conflicts and could seriously disrupt peace. From a neutral standpoint, the intent of commerce-driven states to tax their non-commercial neighbors is both unwise and unjust, as it provokes those taxed states to find alternative trade routes, driven by both spite and financial reasons. The rational argument for long-term and widespread benefits is frequently overshadowed by the loud and urgent demands for quick, substantial profits, both in public policy and individual actions.

Examples from other nations, not just the United States, demonstrate the need for a central authority to oversee trade between states in a confederation. In Switzerland, where the union is weak, each canton is obliged to allow merchants to pass through their jurisdiction to other cantons without additional tolls. In Germany, an official law aims to restrict local powers from imposing trade barriers (but the law’s lack of enforcement leads to the same type of issues the U.S. aims to prevent). In the Netherlands, members shall not add additional duties that are disadvantageous to their neighbors without collective consent.

Current regulations on trade with Indian tribes are rightly free from previous restrictions that caused ambiguity and conflict. The Articles of Confederation limit the federal government’s ability to regulate trade with Indians by excluding Indians who are considered part of a state and by preserving state sovereignty. There is ongoing confusion and debate about the status of certain Indian groups within the federal system, and it is confusing how to regulate commerce with Indian tribes who live within state boundaries but are not considered part of a state, given the federal government’s supposed non-interference with state legislative rights. This is not the only case in which the Articles of Confederation have tried to accomplish the impossible: to grant full sovereignty to both the states and the federal government.

All that needs to be said on the power to coin money, regulate its value, and of foreign money, is that in this last case the Constitution is addressing a blind spot of the Articles, where Congress only has control over the coinage produced by itself or the individual states, not foreign coinage. If the states were allowed to individually determine the value of foreign coins, it would disrupt the uniformity of the coin system that the federal government aims to establish, underscoring the necessity for a centralized regulation of currency valuation.

The federal government, tasked with preserving the integrity of its currency and securities, is naturally also charged with enforcing laws against counterfeiting them.

The responsibility for standardizing weights and measures is likewise transferred from the Articles of Confederation to the new Constitution, just as with coin regulation. The same reasoning applies to both areas: the need for a uniform system to be upheld across all states, which supports commerce and ensures fairness.

Regarding naturalization, differing laws among states have been problematic, causing complex legal issues. There is vague and inconsistent language used in the Articles regarding the rights and privileges of state inhabitants, citizens, and the people. The way “free inhabitants” is used in the text seems to grant them privileges in other states that they may not have in their home state, which can lead to unequal treatment across states, and if “inhabitants” were interpreted to apply only to citizens, issues would persist due to the variance in states’ power to grant citizenship and the rights that go along with it. One state could essentially override another’s laws within its territory by granting citizenship rights more liberally than another state would.

It’s only by chance that the U.S. has avoided serious problems related to the differences in state laws governing the treatment of certain aliens. Some states had laws banning specific aliens from even residing within their borders, not just from obtaining citizenship. What complications might have arisen if an alien, deemed undesirable by one state, became a citizen in another and then claimed their right to reside in the former state? While the legal outcomes of such a scenario are uncertain, the potential real-world implications could be dire and thus necessitate preventative measures. The new Constitution solves these problems by granting the federal government the power to make uniform naturalization laws.

The power of establishing uniform bankruptcy laws is closely connected with the regulation of trade, and will reduce fraudulent practices by addressing the complexities arising when parties or their assets are across state lines. The need to address this seems uncontroversial.

The federal government is also granted the authority to standardize how state documents are verified across state lines and is an evident improvement to the Articles, where the meanings are vague. Regardless of how the Articles are interpreted, they fail to provide a functional framework for this aspect of state interaction, whereas the Constitution could be a practical tool for maintaining justice across state lines.

Lastly, the power of establishing postal roads must be considered a harmless power by all. It may, if managed well, become a great public asset. Nothing which facilities interaction between the states can be deemed unworthy of the public care.

The Federalist 43:

Written by James Madison

A fourth class comprises the following miscellaneous powers:

1. The power to promote the progress of arts and sciences by granting exclusive rights to authors and inventors.

The need for this power will hardly be questioned. The copyright of authors has already existed in Great Britain to be a common law right. The right to patent useful inventions seems to equally belong to inventors. The public good is benefited in both cases by these claims to individuals. Individual states are not capable of providing effective legal protection for copyrights and patent rights on their own and anticipating a national decision on this issue, most states have already passed laws regarding copyrights and patents at the direction of Congress.

2. The power to exercise exclusive legislation over the District of Columbia, and to exercise similar authority over all places purchased by the consent of the legislature of states for military needs and other useful federal buildings.

The need of authority over the nation’s capital is obvious. It is a power exercised by every legislature of the union, if not the world. Without it, the general public would be dependent and subject to the whim of the state wherein the capital resided, which may provide undue influence to that state and dissatisfaction by the other states of the confederacy. This would grow even more important as the capital city grew and became impossible to move elsewhere. This federal district is sufficiently described to allay all fears. The citizens currently inhabiting the land will be willing since they have a voice in the election of the government which will govern them, and they will have a local legislature, which should obviate any objections.

The need of a power over military needs like forts and magazines is just as evident. The public money spent on them require that they not be under the control of a particular state. Nor would it be proper to place the security of the entire union on one member of it. Thus should further solve any objections.

3. The power to declare the punishment for treason, but not to hold family members responsible for the sins of their relative, and not to confiscate property beyond the lifetime of the treasonous person, protecting the rights of their heirs.

Treason may be committed against the U.S., so the U.S. needs the power to punish it. But in the past, new kinds of treason have been used by people in power to oppress others. To prevent this, the Convention included a definition of treason in the Constitution. This definition sets out what proof is needed to show someone is guilty of treason, and stops Congress from punishing anyone beyond the person who committed the crime.

4. The power to allow new states to join the union; but it is not allowed to form a new state within the territory of another state or by joining together two or more states or parts of states without the permission of the legislatures of the states involved as well as Congress.

The Articles of Confederation did not speak on this important subject.  Canada would be allowed to join the United States if they agreed to the terms. Other British colonies could join at the discretion of nine states. The writers of the Articles of Confederation seemed to overlook the possibility of creating new states. This led to some difficulties. The new system is better because it prevents new states from being formed without the approval of the federal government and the states involved. A special rule was also made to protect the smaller states, so they can’t be joined with other states without their permission.

5. The power to manage, sell, and regulate territories and any other properties owned by the United States, with the exception that nothing within the Constitution can be interpreted to harm the legal claims or rights of the United States or any individual state to territories or properties.

This power is crucial, similar to the previously discussed powers, underlining its necessity for federal governance. The inclusion of the proviso was necessary to address the states’ concerns and rivalries over the ownership and governance of western territories, which were common knowledge at the time.

6. The power to make sure that every state in the U.S. has a government based on elected representatives; to protect them from invasion; and to protect them from internal violence if their legislature can’t meet.

In a confederation where all members are republics, the federal government should have the power to preserve the republican nature of the system and prevent the emergence of aristocratic or monarchical rule within the confederacy. The more integrated and dependent the union between member states, the more they have a stake in each other’s governance. As such, they have a significant right to demand that the republican form of government that was the basis for forming the confederacy is preserved.

For every legal right, there must be a means to enforce it. The Constitution is the appropriate place to set down the means for enforcing rights. Governments with different principles and structures are generally less suited to forming a stable federal union than those with similar ones. The German confederacy, with its diverse forms of governance, is less cohesive and effective than the more uniform republics of Holland and Switzerland. Greece’s downfall was precipitated by the inclusion of Macedon, with its monarchical government, in the Amphictyonic League, a council representing various Greek states.

It may be asked what the necessity of a federal authority to intervene in state government affairs is, and whether this could lead to unwarranted federal alterations to state governments without state approval. This is easily answerable: if there is no need for federal intervention, the provision that allows for it in the Constitution will simply be an extra measure that does not cause harm. But who knows what unpredictable actions by states, ambitious local leaders, or foreign influence may necessitate federal intervention to maintain the union’s stability? Any federal intervention would be conducted under and limited by the constitutional authority granted to it, which is just limited to ensuring that states maintain a republican form of government. As long as states uphold their republican structure, the federal government guarantees their governance under the Constitution. States have the freedom to change their government structures as long as the new structure remains republican, and they can seek federal protection for these changes. The only limitation is that states cannot adopt non-republican constitutions; this restriction is presumed not to be objectionable to the states.

It is a fundamental responsibility of a society—or in this case, a confederation—to safeguard its constituent parts, the member states, against invasion. The broad terms used in the article provide security for each state against not only acts of aggression by foreign nations but also against aggressive actions by more powerful states within the confederation itself. History shows the importance of such protective measures for the less powerful members of a union.

It’s equally appropriate for a government to provide protection against internal conflicts or domestic violence as it is to defend against external invasion. Even Swiss cantons, despite not being governed by a single national government, have made arrangements to protect against internal disturbances. Historical evidence from the Swiss confederation shows that cantons often provide assistance to each other in times of internal strife, regardless of whether they are more democratic or otherwise in their governance. Recent events in the United States highlight the need for readiness to handle similar domestic crises.

The idea that a majority may not have the right to govern or that a minority could overthrow a government seems to go against the principles of republicanism, implying that federal intervention would always be inappropriate. These theoretical principles must be balanced with practical experience, indicating that theory alone should not dictate political action without consideration of real-world circumstances. If a state’s authority is expected to control local unrest, then by analogy, the federal government should be able to support the state in controlling larger scale unrest. Furthermore state and federal constitutions are interconnected, so that instability in a state affects the federal system as a whole, justifying federal intervention in certain cases. The likelihood of federal intervention in state insurrections will be low, unless those insurrections involve a significant number of people relative to those who support the government. It’s preferable for the federal government to suppress violence rather than letting a conflict escalate into a protracted and bloody struggle within a state. Merely having the right to intervene can act as a deterrent to violence, thus preventing the need for actual intervention.

Is it true that power and force are always on the same side as moral rightness in republican governments? Couldn’t a minority have greater financial means, military skills, or foreign support, which could give them an advantage in conflict, despite their smaller numbers? Couldn’t strategic positioning and better organization allow a minority to prevail over a majority that is larger but less well-coordinated or positioned? It’s unrealistic to think that the outcomes of physical conflicts can be predicted based on population size or the results of elections, as force operates on different principles. Couldn’t a minority of citizens effectively become the majority by gaining support from non-citizens, transients, or those the Constitution doesn’t grant voting rights to? There exists disenfranchised populations who are not considered in counts of legal citizens but who can become influential in times of civil unrest, potentially tipping the balance of power.

In situations where internal factions within a state resort to conflict and the justice of either side’s cause is not clear, representatives from a larger confederation (who are not involved in the dispute) would serve as ideal mediators. Their distance from the local issues would presumably allow for a more objective perspective and help reunite affections. How nice would it be if such a system could resolve conflicts internationally, beneficial for all governments and contributing to world peace.

What about scenarios where the insurrectionists have more physical power but lack legal or moral legitimacy? While no practical solution may exist for such an extreme scenario, it is also highly unlikely to occur. One of the strengths of the federal constitution is its capacity to reduce the likelihood of such an extreme event; while no constitutional design can guarantee absolute protection against a universal rebellion, the proposed system lessens the chances of such a disaster.

The ability of a confederation to suppress local insurrections is a key benefit. The structure allows for other states within the confederation to intervene and help restore order when one state experiences a popular uprising. A confederate republic has a self-healing quality; if one state falls into corrupt or abusive practices, the others, presumably operating with better governance, can influence and help reform the troubled state. The collective wisdom and practice of the healthier states serve as a model and a corrective force

7. The power to honor all previous debts and commitments made under the Articles of Confederation.

This is a declaratory proposition, inserted to reassure foreign creditors. This addresses a misconception possibly held by foreign observers that a nation can escape its debts and moral duties by altering its government’s structure. The inclusion of this clause directly counters that notion, asserting that the United States rejects such a doctrine and stands by its obligations.

Some critics may feel the language is one-sided, emphasizing only the United States’ duty to honor its debts and not the reciprocal responsibility of others to honor their commitments to the United States. The critique has been exaggerated by some to suggest that not including a reciprocal statement was part of a deliberate scheme to undermine the country’s rights. This overblown conspiracy ought to be dismissed. Contracts are inherently reciprocal; therefore, affirming the validity of obligations against the United States implicitly affirms the validity of what is owed to it. Since the clause in question is declarative, stating the principle once applies it universally, covering all cases without the need for repetition. Constitutions should address realistic concerns, not hypothetical or imagined ones. There is no plausible risk that the government would neglect its obligations, regardless of whether the Constitution explicitly states this principle.

8. The power to provide for amendments ratified by three-fourths of the states, with only two exceptions. (Exception 1, that no amendment prior to 1808 could alter the slave trade or direct taxation provisions until that year. Exception 2, that no state, without its consent, shall be deprived of its equal suffrage in the Senate.)

The need for changes to the Constitution will become apparent over time as new situations and issues arose that the original document did not foresee. Recognizing this need, the Constitution’s framers included a method for making amendments. The process strikes a balance by being neither too easy, which would make the Constitution too changeable, nor too difficult, which would prevent necessary amendments. Moreover, it allows both federal and state governments to initiate changes, reflecting experiences and identifying errors that may come from either governance level. The provision ensuring equal representation for all states in the Senate is intended to protect state sovereignty, which is a fundamental aspect of the federal system. The other exception (related to the slave trade and direct taxation) was likely included for reasons that were important at the time, namely, the contentious debates over these issues.

9. The ratification of the Constitution by nine states is enough for the Constitution to take effect for those states ratifying it.

This article speaks for itself. The Constitution derives its legitimacy from the clear and explicit consent of the people, rather than the unanimity of the state governments. Requiring all thirteen states to ratify the Constitution would mean that any one state could block the formation of the new government for potentially arbitrary or self-interested reasons. This would have placed the collective welfare of the union at the mercy of individual states, which could act on whims or be swayed by corrupt influences.

Two complex questions were pertinent during the ratification of the U.S. Constitution: 1. Can the collective agreement of the Articles of Confederation, which was initially entered into unanimously, be amended or dissolved without the same level of consensus? 2. What relationship would exist between the nine or more ratifying states, and the remaining states which did not ratify it?

The first question is answered by necessity: the need to replace the Articles of Confederation arises from the principle of self-preservation and the fundamental natural rights to safety and happiness, which are the ultimate goals of all political institutions. If the existing framework fails to ensure these, it is not only justifiable but necessary to alter or replace it. The answer may also lie within the principles of the Confederation itself, as one of the its flaws was that its ratification in many states was done only by the legislature rather than through a more robust process involving the people directly. Based on reciprocity, if some states ratified the Confederation only through legislative action, it follows that the same level of consent (legislative rather than unanimous or popular) should suffice to alter or replace it. It is a principle of international law that if one party breaches the treaty, the other parties may consider the entire agreement void. If it becomes necessary to argue these points to justify the dissolution of the Confederation without some states’ consent, those states opposing the change would have to address their own failures to adhere to its terms. Previously, it may have been necessary to be discreet about these arguments for political unity or expediency, but circumstances have changed, warranting a more open discussion about the need for and legitimacy of a new constitution.

• Discussion: To what effect do you think law can be broken in favor of moral and political principles? What distinguishes cases where law ought to be followed, or where it ought be broken?

The second issue of how to handle states that do not ratify the Constitution is as sensitive as the first question. Since there is a possibility that all states might eventually agree to it, excessively debating the issue is unnecessary, potentially unproductive, and should be left to resolve on its own terms. Despite the lack of a formal political connection between states that have ratified the Constitution and those that have not, their moral obligations to each other persist. The principles of justice remain binding on all sides, whether they have accepted the Constitution or not, and that these obligations to the rights of humanity must continue to be honored. I hope that shared interests, a collective history, and the expectation that any current disagreements will be overcome will encourage restraint and wisdom among the states.

The Federalist 44:

Written by James Madison

The fifth category of powers given to the federal government includes various limits on state powers:

1. States cannot make treaties, alliances, or confederations; issue letters of marque and reprisal; create their own currency; issue bills of credit; make anything other than gold and silver a legal way to pay off debts; pass any bill of attainder, retroactive law, or law that weakens the obligation of contracts; or grant any title of nobility.

The ban on treaties, alliances, and confederations is already part of the current Articles of Confederation and is included in the new Constitution for obvious reasons. The restriction on letters of marque, which are permissions for private individuals to act as naval warriors, was also in the old system but is expanded in the new one. Under the old system, states could issue these letters after declaring war, but under the new Constitution, these permissions must always come from the U.S. government, whether before or during a war. This change makes sense because it ensures consistency in how the U.S. interacts with other countries and makes the nation directly responsible for actions that it will be held accountable for internationally.

The Constitution takes away the states’ right to create their own money, a right they had under the Articles of Confederation. Previously, states could make their own money, but Congress decided the composition and value of the money. The new rule is better. When states had the right to mint their own money, it led to unnecessary costs from having many mints and created confusion with different types and weights of money. This confusion went against one of the reasons for giving the federal government control over money. While having local mints could help avoid the hassle of sending gold and silver far away for making coins, this can still be managed by having local mints under federal control.

The Constitution’s ban on states issuing their own paper money (bills of credit) is seen as a positive step, especially for those who value justice and understand what drives economic prosperity. America has suffered since the end of the Revolutionary War due to the harmful effects of state-issued paper money. This includes damaging trust between people, undermining confidence in government, harming work ethics and morals, and negatively affecting the reputation of republican government. This situation has created a significant moral debt for the states that issued this money, which can only be addressed by willingly giving up the power to issue it. Additionally, the same arguments against states having the power to regulate coinage also apply to them issuing paper money. If states could determine their own coinage, there would be as many currencies as there are states, complicating trade and potentially leading to unfair changes in value. This could harm citizens of other states and create tensions between states. It could also negatively affect international relations. Allowing states to issue paper money poses similar risks to letting them create their own coinage. Therefore, the Constitution only allows gold and silver to be used for paying debts, to maintain consistency and stability.

Bills of attainder, ex post facto laws (laws that punish actions retroactively), and laws that break contract obligations go against basic principles of a fair and stable society and good lawmaking. Some state constitutions explicitly ban the first two, and the spirit of these constitutions opposes all three. However, experience has shown that extra safeguards are necessary. Therefore, the Constitution rightly includes protections for personal safety and private rights, aligning with both the true feelings and the best interests of the people. Americans are tired of inconsistent policies and legislative changes that impact personal rights, often manipulated by influential individuals for personal gain, to the detriment of hardworking, less informed citizens. Such legislative changes often lead to a series of further changes, each prompted by the consequences of the previous one. The public rightly concludes that a major reform is needed to stop these manipulations, encourage wise conduct and hard work, and bring consistency to societal affairs. The Constitution’s ban on granting titles of nobility, which was also in the Articles of Confederation, is self-explanatory and needs no further discussion.

States are not allowed to impose taxes or fees on imported or exported goods without Congress’s approval, except for those necessary to enforce their inspection laws. However, the money collected from such taxes or fees must go to the United States Treasury. Also, Congress has the right to review and regulate any such state laws. Additionally, without Congress’s consent, a state cannot tax ships based on their size or capacity (tonnage), maintain an army or navy during peacetime, make agreements with other states or foreign countries, or declare war, unless they are under immediate threat or invasion.

The limitation placed on state powers regarding imports and exports is supported by all the arguments that show why trade regulation should be handled by the federal government. Therefore, there’s no need to discuss this further. The way this limitation is set up seems to strike a good balance. It allows states some freedom to manage the convenience of their imports and exports while giving the United States enough control to prevent misuse of this freedom. The other details of this clause are either very clear or have already been thoroughly explained, so they don’t need additional discussion.

The sixth and final category includes various powers and measures that make all the other parts of the Constitution effective.

1. The first of these is the power to make all laws that are necessary and proper for implementing the powers given by the Constitution to the U.S. government, its departments, and officers.

This part of the Constitution has faced a lot of criticism, but upon careful examination, as previously shown, it is actually very strong and necessary. Without this power, the Constitution wouldn’t be effective at all. Those who criticize this section are likely arguing about the way it’s written, rather than its content. However, it’s important to consider whether there could have been a better way to phrase it.

The convention could have chosen one of four different approaches regarding the powers of the federal government: (1) They could have followed the second article of the existing Articles of Confederation, which would only allow powers that are explicitly given. (2) They could have tried to list out all the powers included under the terms “necessary and proper.” (3) They could have made a list of powers that are not included under “necessary and proper.” (4) They could have said nothing about it, leaving these powers to be understood through interpretation and inference.

If the convention had chosen the first method to adopt the second article of the Articles of Confederation, the new Congress would face the same dilemma as the old one: either interpret “expressly” very strictly, leaving the government powerless, or interpret it broadly, rendering the restriction meaningless. It’s clear that under the Articles of Confederation, Congress couldn’t execute important powers without stretching their interpretation. Since the new Constitution gives more powers, the new government would find itself in an even worse situation. It would have to choose between not acting at all, which would harm public interests, or acting in necessary and proper ways that aren’t explicitly given, potentially violating the Constitution.

If the convention had tried the second method to list all the specific powers needed to make their other powers work, it would have required a full set of laws covering every topic related to the Constitution. This list would have to be suitable not only for the present situation but also for any future changes. This is because every time a general power is used in a new way, the specific powers that help achieve the goal of the general power must change according to the situation. Even if the overall goal stays the same, the ways to reach it might need to change.

If the convention had tried the third method to list specific powers or methods that were not necessary or proper for executing the general powers, this task would have been just as unrealistic. Additionally, any power not included in this list could be seen as being allowed. If they tried to list only some exceptions and covered the rest with the phrase “not necessary or proper,” only a few powers would have been specifically excluded. These excluded powers would likely be those least needed or appropriate. As a result, the powers not listed (but still unnecessary or improper) would be less clearly excluded than if no such list had been attempted.

If the Constitution had tried the fourth method and not specifically addressed which powers the government has, it’s clear that the government would automatically have any powers needed to carry out its general responsibilities. This is a well-known principle in law and logic: when you’re given the task to do something, you’re also given the necessary means to do it. So, if the Constitutional Convention had followed this approach, all the current criticisms of their plan would still be valid. Moreover, by not clearly defining these powers, they would have left open the possibility for people to question the government’s essential powers during critical times.

If someone asks what happens if Congress misinterprets the Constitution and exercises powers it shouldn’t, the answer is the same as if they wrongly used any other power they have. This is similar to what would happen if state legislatures overstepped their constitutional limits. In either case, the success of such overreach depends on other government branches (like the executive and judiciary) who interpret and enforce these laws. Ultimately, if these branches fail to correct the mistake, the people have the final say. They can elect new representatives who will reverse the wrongful acts. It’s actually more likely that the people will notice and correct unconstitutional acts by the federal government than by state legislatures. This is because state violations might go unnoticed without an intermediate group between the state governments and the people, whereas federal overreaches are more visible as they infringe on state rights, prompting states to alert the public and influence a change in federal representation.

2. Article VI, Clause 2 of the Constitution states that the Constitution itself, any laws made by the United States that follow the Constitution, and all treaties made under the United States’ authority, are the highest laws of the country. This means they overrule any conflicting state constitutions or laws. Judges in every state are required to follow these federal laws and the Constitution, even if they conflict with the laws or constitution of their state.

The overzealous critics of the Constitution have also attacked this part of it, but without this part, the Constitution would have been clearly and fundamentally flawed. To understand this, imagine if the Constitution had included a clause preserving the complete supremacy of state constitutions over federal law.

Firstly, since state constitutions give their legislatures absolute power in areas not covered by the Articles of Confederation, any powers in the proposed Constitution that go beyond those in the Confederation would have been nullified. This would leave the new Congress as powerless as its predecessor.

Secondly, some state constitutions don’t fully recognize the powers granted by the Confederation. If the supremacy of state constitutions had been confirmed, it would have cast doubt on every power in the new Constitution in these states.

Thirdly, as state constitutions vary significantly, a national law or treaty important to all states might conflict with some state constitutions but not others. This would mean the law or treaty could be valid in some states but ineffective in others.

Finally, such a system would have been unprecedented, reversing the basic principles of governance. It would create a situation where the authority of the entire country was subordinate to its individual parts, like a creature controlled by its limbs instead of its head.

3. The next clause states that 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.

There has been a question about why state officials must pledge to support the federal Constitution, while federal officers aren’t required to pledge support for state constitutions. The key reason is that federal government members don’t enforce state constitutions, but state officials play a critical role in implementing the federal Constitution. State legislatures are responsible for electing the President and Senate, and the election of the House of Representatives initially depends on state authorities and is likely to continue being managed by them.

4. Among the ways to make the federal government effective, we could also talk about the roles of the executive and judiciary branches. However, this topic will be discussed in more detail elsewhere.

In conclusion, after thoroughly examining each part of the proposed Constitution, it is clear that all the powers given to the federal government are necessary and appropriate for the union’s needs. So, the real question is whether to grant these powers or not, which boils down to whether a government that meets the union’s needs should be established, or put another way, whether the union itself should be preserved.

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