General View of the Powers to be Given to the Union

The proposed Constitution may be viewed two ways: the power it gives the government, restraints on the states included; and how that power divides among the government’s parts. Under the first view, two questions arise. Is any of that power needless or improper? Is the whole of it dangerous to the jurisdiction left the states? Take the first.

The critics scarcely weigh whether a power is a necessary means to a necessary end. They dwell instead on the drawbacks and abuses that any power brings. But candid people choose the greater good, not the perfect. So when power is conferred, first ask whether it is necessary, then how to guard against its abuse.

Reduce the Union’s powers to six classes. (1) Security against foreign danger. (2) Dealings with foreign nations. (3) Harmony among the states. (4) Other objects of general use. (5) Restraint of the states from harmful acts. (6) Provisions to give these powers effect. The first class covers declaring war and letters of marque; armies and fleets; regulating the militia; levying and borrowing money. Security against foreign danger is a first object of civil society and an essential object of the Union; its powers must rest with the federal councils.

No man denies that declaring war is necessary; the Confederation grants that power in full. Raising armies and equipping fleets follows from it, and from self-defense. But was an indefinite power to raise troops and fleets, in peace as well as war, necessary? Force for defense cannot be limited by those who cannot limit force for offense.

Constitutional barriers against self-preservation are vain, and worse than vain. Each necessary usurpation they plant in the Constitution is a seed of more. One nation’s standing army, kept for ambition or revenge, forces its peaceful neighbors to arm as well. Rome’s own liberties fell to her military triumphs. A standing force is dangerous, though it may be necessary, and on any scale it calls for care. A wise nation does not rashly give up a resource its safety may need. It works instead to lessen both the need for this one and its danger.

The Union destroys every pretext for a dangerous establishment. America united, with a handful of troops, is more forbidding to foreign ambition than America disunited with a hundred thousand veterans. Britain, safe behind her island and her navy, never needed a large peacetime force; our distance from the powerful nations gives us the same security. We owe that to the Union alone. Dissolve it, and the fears of the weaker states, or the ambition of the stronger, will set the example here, as Charles VII set it in Europe. Liberty would be crushed between standing armies and endless taxes.

No lover of peace, country, and liberty can weigh disunion’s consequences too often. Next to the Union itself, the best guard against standing armies is a limit on the term of their funding, which the Constitution has set. Critics urge Britain’s annual army vote against our two years. But the British constitution fixes no limit at all; Parliament has held the term to one year only in practice. The Commons is chosen for seven years, by few and corrupted electors. It may vote money without limit, yet never dares exceed a year. Our representatives are freely elected by the whole people every second year. May they not be trusted with two?

A bad cause betrays itself. The opposition’s most striking blunder is enlisting the people’s jealousy of standing armies. The inquiry it started must end in a conviction of two things. First, the Constitution has provided the most effectual guards against that danger. Second, only a Constitution equal to the national defense and the Union can save America from as many standing armies as it splits into states or confederacies. Each would be more burdensome to property and ominous to liberty than any a united government needs.

A navy is plainly necessary. The Union will be our only source of sea power, our chief security from abroad. Batteries that repel a foreign enterprise can never be turned against our own liberties. The Atlantic states have the deepest interest here. Their safety so far owes nothing to the present government, but to causes fleeting and false. Should a European war reach the ocean, escape would be miraculous. Could a single state fortify itself, the means would nearly eat up the object.

The militia power has already been defended. Levying and borrowing money, the sinew of national defense, belongs with it. For those who would tax only imports, I add one reflection. Such duties are valuable and must long be a chief source. But revenue from foreign commerce follows imports, not population, the measure of public wants. While farming is our only labor, imports rise as consumers multiply. As domestic manufactures begin, imports fall though the people increase. Later, imports may be raw materials worked up for export, needing bounties, not duties. A government meant to last must plan for these changes.

Some who grant the taxing power still attack its wording. They say the clause “to provide for the common defense and general welfare” gives the government unlimited power. Had the Constitution held only that general phrase, the objection might have had some color. But consider a power to destroy the freedom of the press, or trial by jury, or to regulate descents and conveyances. It sits strangely under “raise money for the general welfare.”

What color has the objection, when a list of those objects follows at once, parted only by a semicolon? Every part of an instrument should be read to carry meaning where it can. And why list particulars at all, if the general power already covered them? Stranger still, the language is copied from the Confederation, whose third, eighth, and ninth articles use it. Construe those articles as the objectors construe this Constitution, and the present Congress may legislate in all cases. How hard it is for error to escape its own condemnation.

The second class governs our dealings with foreign nations. It covers treaties; ambassadors, other public ministers, and consuls; and the power to define and punish piracy, high-seas felonies, and offenses against the law of nations. It covers foreign commerce too, with power to bar the importation of slaves after 1808, and meanwhile a ten-dollar duty a head to discourage it. This is an obvious and essential branch. If we are to be one nation in any respect, it ought to be toward other nations.

The treaty and ambassador powers speak for themselves. Both stand in the Articles. But the new plan frees treaties from the exception by which state rules could defeat them, and adds the appointment of other public ministers and consuls. Strictly, “ambassador” means only the highest grade, not the lesser ones we often need, and never consuls. Admitting foreign consuls here, where no treaty provides for it, seems nowhere covered; the convention supplied the gap. Small rules matter when they remove the necessity, or the pretext, for slow and unseen usurpation.

Defining and punishing piracy, high-seas felonies, and law-of-nations offenses belongs to the general government, a still greater gain on the Articles. They make no provision for offenses against the law of nations, leaving any rash member free to embroil the Confederacy abroad. On piracy and felonies they go no further than setting up courts, yet high-seas felony plainly needs defining. “Felony” is loose even in English law, which is no standard for us unless our legislature adopts it. State meanings differ too, and shift with each revision. For certainty and one standard, the power to define was necessary and proper.

Foreign commerce, discussed fully elsewhere, plainly belongs to the federal government. One would wish the ban on importing slaves had taken effect at once, not in 1808. Still, it is a great point gained for humanity that twenty years may end forever within these States a traffic so long condemned. Meanwhile the federal government checks it, and the few states still in the trade may follow the majority’s example. Some pervert the clause into an objection, calling it either a criminal toleration or a bar to useful migration. I note these misconstructions only as specimens of the opposition’s spirit.

The third class provides for harmony and proper dealings among the states. Restraints on the states I leave to another class, certain judicial powers to the government’s structure. The rest I review here: (1) Commerce among the states and with the Indian tribes. (2) Coining money and fixing its value, and that of foreign coin. (3) Punishing counterfeit coin and securities. (4) Weights and measures. (5) Uniform rules of naturalization and bankruptcy. (6) How each state’s acts and judgments are proved, and their effect elsewhere. (7) Post offices and post roads.

The Confederation’s want of power over commerce among its members is a proven defect. Without it, power over foreign commerce is incomplete. Left free, each state would load goods in transit with duties falling on the makers of exports and the buyers of imports. That breeds ill will, and likely breaches of the public peace. Taxing uncommercial neighbors is unwise as well as unfair. Other confederacies show the same need for one authority over their members’ trade. In Switzerland, where the union is very slight, each canton must pass goods on without added tolls.

Commerce with the Indian tribes is rightly freed from two limits that made the Articles obscure and contradictory. The power reached only Indians not members of a state, and could not infringe a state’s legislative right. Which Indians count as members was never settled. The Articles more than once tried the impossible: partial sovereignty in the Union with complete sovereignty in the states.

On coining money and valuing our own and foreign coin, the Constitution fills a gap. The present Congress reaches only coin struck by its own or the states’ authority. The proposed uniformity in the value of the current coin might be destroyed if each state set the value of foreign coin. Counterfeiting of coin and securities falls naturally to the power that secures their value. Weights and measures are transferred on like grounds.

Naturalization rules differ from state to state, a long-noted fault breeding hard questions. The Confederation’s fourth article is confused. A state’s free inhabitants, though not its citizens, seem to hold the privileges of free citizens in every other state, more than they hold at home. Confined to citizens, the trouble only shrinks: each state could still naturalize aliens for every other, making its law paramount there. Only chance has spared us worse. Several states barred obnoxious aliens even from residence; such men might gain citizenship elsewhere and claim it there. The Constitution answers with a uniform rule of naturalization.

Uniform bankruptcy laws are tied to commerce, and prevent so many cross-state frauds that few will question them. Fixing how each state’s acts and judgments are proved, and their effect elsewhere, plainly improves on the Articles’ vague clause. It may become a convenient instrument of justice on state borders. Post roads are a harmless power, and well managed a great convenience. Nothing that eases dealings between the states is unworthy of the public care.

A fourth class covers these miscellaneous powers. 1. Exclusive rights for authors and inventors, for a limited time, to promote science and useful arts. Britain holds an author’s copyright a right of common law; by equal reason a useful invention belongs to its inventor. In both cases the public good runs with the individual’s claim, and the states cannot secure either alone.

2. Sole power to make law at the seat of government, and over forts, magazines, arsenals, dockyards, and other needful buildings bought with a state’s consent. Without full authority at the capital, the government would depend on one state for protection, giving that state undue influence and offending the rest. Forts and magazines stand on the same ground. The money spent on them must not fall under a state’s control, and the Union’s safety must not rest on one member.

3. To set the punishment for treason, but not to punish a traitor’s family, and not to take his property beyond his own life. The United States must be able to punish treason committed against it. But new kinds of treason have been the engine by which people in power crush their rivals. So the convention fixed the meaning of treason, the proof needed to convict, and a bar on guilt reaching past its author.

4. To admit new states, but none formed inside another state, or by joining states, without the consent of the legislatures concerned and of Congress. The Confederation provided only for Canada and the other British colonies; new states were overlooked. We have felt the harm of that silence, and the power Congress was driven to assume. The bar on carving up a state quiets the large states; the bar on joining them, the small.

5. To dispose of and regulate the territory and other property of the United States, saving the claims of the Union and of any particular state. This power is of great importance, and the proviso attached to it was probably made necessary by the known rivalries over the Western territory.

6. To guarantee every state a republican form of government, to protect each against invasion, and, on the call of its legislature, against domestic violence. In a confederacy of republican members, the general government must be able to defend the system against aristocratic or monarchic innovations. The closer the union, the greater each member’s stake in the others’ institutions, and its right to insist those forms be kept. A right implies a remedy, and where should it sit but in the Constitution?

It may be asked what need there is of this precaution, and whether it becomes a pretext for altering state governments without their consent. If the general government never needs to step in, the provision is a harmless extra. But who can say what a state’s caprice, an ambitious leader, or foreign intrigue may produce? Stepping in, the government is bound by that authority, which guarantees only a republican form already in place. A state may exchange one republican form for another and claim the guarantee. Only unrepublican constitutions are barred, hardly a grievance.

Every society owes its parts protection against invasion. The broad words guard each state not only from foreign attack but from the schemes of more powerful neighbors. Protection against domestic violence stands on equal ground. Even the Swiss cantons, not under one government, provide for it. A recent event among ourselves warns us to be ready.

Republican theory seems to deny that a majority can lack the right, or a minority the force, to overturn a government. Interposition would then be needed only when improper. But practice corrects theory. Violent combinations may form in a small state’s majority as in a county’s. If the state protects the local magistracy there, the Union should support the state here. Parts of the state constitutions are so interwoven with the federal that a violent blow to one wounds the other. Better the higher power put down such violence than let a majority win by a bloody and stubborn contest. The right to step in usually prevents the need to use it.

Is force always on the side of right in a republic? The smaller party may have more money, more military skill, secret foreign aid, or better position. A minority of citizens may also become a majority of persons, by alien residents, adventurers, and those denied the vote. I pass over that unhappy population in some states, who in civil violence may lend their strength to any party.

Where justice between warring factions is doubtful, what better umpires than representatives of the confederate states, not heated by the local flame? For a revolt spread through all the states, strong in force though not in right, there is no human remedy. Happily there is little likelihood, and the Constitution lowers even that risk. Montesquieu counts among the gains of a confederate republic that the others can quell a revolt in one state, and reform abuses in another.

7. All debts and engagements entered into before this Constitution remain as valid against the United States as under the Confederation. This only declares what would hold without it. It was inserted, among other reasons, to satisfy foreign creditors against the doctrine that a change of political form dissolves moral duties. A lesser criticism says validity should have been asserted for the United States too. But engagements are reciprocal: assert them on one side and you assert them on the other.

8. To provide for amendments, ratified by three-fourths of the states, with two exceptions only. Experience will suggest useful changes, so a way to make them was needed. It guards against the ease that makes a constitution too changeable and the difficulty that locks in its faults. The exception for equal suffrage in the Senate was probably meant to shield the sovereignty the states keep. The other exception must rest on the same considerations that produced the privilege it defends.

9. Ratification by nine state conventions establishes the Constitution among them. Only the express authority of the people could give the plan its force. Requiring all thirteen would have left the whole to the caprice or corruption of a single member. Two delicate questions arise. 1. By what principle can the Confederation, a compact among the states, be set aside without the consent of all? 2. What tie will hold between the ratifying states and those that refuse?

Necessity and self-preservation answer the first question. The law of nature makes the safety and happiness of society the end of all government, and every institution must yield to them. Perhaps an answer lies within the compact too. In many states the Confederation received only a legislative ratification, and reciprocity seems to require the same standard for the rest. Such a compact claims no more force than a treaty. By settled doctrine a treaty’s articles are mutual conditions: breach one and the others may call the whole void. Should we need these truths, the complaining states could hardly answer their own breaches.

The second question is as delicate, and will likely never arise. No political tie can hold between the assenting and the dissenting states, but the moral ties remain. The claims of justice on both sides must be met, and the rights of humanity respected. Three things will, I hope, urge moderation on one side and prudence on the other. They are common interest; the memory of the scenes now past; and the hope of a speedy triumph over the obstacles to reunion.

A fifth class restrains the states. None may make treaties, alliances, or confederations; grant letters of marque; coin money; or issue bills of credit. None may make anything but gold and silver legal tender; pass bills of attainder, ex post facto laws, or laws impairing contracts; or grant titles of nobility. The ban on treaties already stands in the Articles. Letters of marque go further: states once granted them after declaring war, but now only the United States may. That keeps our dealings with foreign powers uniform. Coining money, once shared with Congress, is likewise taken away. With alloy and value fixed centrally, state mints could only multiply expense and vary the coin, defeating one purpose of the power.

Paper money has broken trust between men and in the public councils. It has hurt the people’s industry and morals, and the name of republican government. That is a great debt against the states that issued it, paid only by giving up the power. The reasons that deny them coin deny them paper. As many currencies as states would block trade. Values changed after the fact would injure other states’ citizens and stir animosities.

Bills of attainder, ex post facto laws, and laws impairing contracts offend the first principles of the social compact and sound legislation. Our own experience teaches that further fences are wanted. The convention rightly added them for personal security and private rights. The sober people of America are weary of shifting policy. Sudden changes in private rights become jobs for speculators and snares for the industrious. They rightly infer that thorough reform is wanting.

Without Congress’s consent, no state may tax imports or exports beyond what its inspection laws require; the produce goes to the United States treasury. Nor may a state lay tonnage duties, keep troops or ships of war in peacetime, or compact with another state or foreign power. Nor may it make war, unless actually invaded or in danger too near for delay. Each argument for federal control of trade supports this restraint. Its limits leave the states discretion and check abuse.

The sixth and last class gives effect to all the rest. First is the power to make all laws necessary and proper for executing the foregoing powers, and every other power vested in the federal government or its officers. Few parts are attacked more hotly, yet none holds up better. Without the substance of this power the whole Constitution would be a dead letter. Objectors can only mean the form is improper. Could a better form be substituted?

Four other courses were open. (1) Copy the Confederation’s second article, barring any power not expressly delegated. (2) List what “necessary and proper” includes. (3) List what it excludes. (4) Say nothing. Under the first, Congress would face the old dilemma: read “expressly” strictly and disarm the government, or loosely and void the restriction. With wider powers the pressure would be greater still. It would have to betray the public by doing nothing, or break the Constitution by using powers necessary and proper but not expressly granted.

A positive list would have required a complete digest of laws on each subject the Constitution touches. The means must vary with each new object. A negative list is just as hopeless, and each gap would work as a grant of power. A partial list would catch only the powers least likely to be claimed. The rest would be less firmly barred than if nothing were listed. Had the Constitution said nothing, the powers needed as means would have followed by unavoidable implication. Where the end is required, the means are authorized. Every objection now urged would still stand. Silence would also leave a pretext, seized in a crisis to question the essential powers of the Union.

If Congress misconstrues this power, I answer as for any other abuse. Success depends on the executive and judiciary, who give the laws effect. In the last resort the people annul the usurpers’ acts by electing more faithful men. That redress may be trusted more against federal than state usurpation. Each federal usurpation invades the states’ rights. They will sound the alarm to the people and change their federal representatives. No like body watches the state legislatures, so their violations more often pass unnoticed.

This Constitution, the laws made in pursuance of it, and United States treaties are the supreme law of the land. Judges in every state are bound by them, whatever their own constitution or laws say. Adversaries attack this part too; without it the plan would be radically defective. Suppose a saving clause had left the state constitutions supreme.

First, those constitutions make the state legislatures sovereign but for the Confederation’s exceptions. Every power beyond them would fall, leaving Congress as weak as before. Second, some state constitutions barely recognize the Confederation’s powers, so saving their supremacy would question every new power. Third, the constitutions differ, so one national law or treaty might bind in some states and be void in others. In fine, first principles would be inverted: the whole subordinate to its parts, a monster whose head obeyed its members.

Senators, representatives, state legislators, and all executive and judicial officers, federal and state, swear to support this Constitution. Why must the state magistracy swear to it, and not federal officers to the state constitutions? I give one reason, obvious and conclusive. Federal officers have no hand in carrying the state constitutions into effect. State officers are essential to the federal one, for the election of President, Senate, and House depends on state authorities.

The executive and judiciary give effect too; I reserve them for another place. We have now reviewed every article of delegated power. None of it is unnecessary or improper for the necessary objects of the Union. Granting it resolves into another question: shall a government equal to the exigencies of the Union be established? In other words, shall the Union itself be preserved?