Federalist No.42

The Powers Conferred By The Constitution Further Considered

Tuesday, January 22, 1788

James Madison


In Federalist Paper 41 Madison separated the powers of the Union into six separate classes. In that paper he addressed the powers of the Union in relation to the country’s security against foreign powers. In this paper he continues his discussion of these classes of power by considering his second and third classes of powers, the regulation and intercourse with foreign nations, and that of maintaining harmony between the States.


But first, a general argument that runs through this paper is that the new Constitution is either in harmony with the Articles of Confederation, that it extends the powers of the Articles of Confederation where they are lacking, or that it corrects errors in that document that might have negative consequences if the wording of that document were legally tested.

Second Class of Powers – Foreign Nations


With regard to America’s dealings with foreign powers, Madison points out that any dealings with foreign powers under the Articles of Confederation were potentially compromised if agreements were in conflict with the laws of individual States.


He also points out that the admission of consuls into the country without formal treaties has been an ill-defined area of the Articles of Confederation which the new Constitution allows.


With regard to protecting trade and borders, Madison points out that America has had no clear definition of piracies and felonies on the high seas which makes it difficult to establish a uniform legal response to those matters. With no uniform approach, Madison suggests that any State might embroil the Confederacy with foreign nations. He is not specific about what this means. At worst, I assume it might mean war, but he might also be referring to potential legal quagmires since he mentions that some might consider it adequate to just accept the law of nations, by which I take it to mean international laws or laws of other nations. This is clearly unacceptable and Madison argues that the new Constitution could provide uniform legal definitions.


The issue of slavery is attached to this issue of foreign powers. The new Constitution proposes to abolish the importation of slaves by 1808, another 20 years after this paper is published. Madison criticises States for the barbarism of modern policy, although Madison is known to have owned slaves, which makes him typical of the inconsistency of many of the founding fathers who had elements of enlightened thinking and regressive practices in their characters.

Third Class of Powers – Harmony and Proper Intercourse among the States


Madison lists several powers needed by a national government to achieve harmony between the States. The power to:


First, Madison argues that the national government must regulate commerce between states in order to decrease animosity between States and to avoid the ridiculous situation of States trading via inconvenient and inefficient routes. He sees the cause of these problems to be chiefly State duties levied on goods passing through their States, particularly in circumstances where a State is levied that has nothing to do with the manufacture or commerce of the goods in question. He points out that in other counties this practice has been abolished.


Madison addresses the issue of trading with Indians. Former State laws had tried to regulate this, but Madison describes it as a question of frequent perplexity, since Indians reside on land deemed to be State land, but are not members of those States or the nation. Madison believes it is not possible to regulate trade with the Indians.


Other issues that are less contentious concern the power to coin money, regulate weights and measures, as well as build post offices and roads. Concerning money, he merely adds that the national government must also take control of the regulation of foreign coin so that the value of American coin might be more easily controlled.


The last major issues he addresses are the rules concerning naturalisation and bankruptcy.


Madison examines some of the language in the Articles of Confederation concerning naturalisation. He points out that the language is not uniform, conflating free inhabitants, free citizens and people, thereby allowing the rights of citizens to potentially be conferred on non-citizens, from one State to another. That is, if a non-citizen was to exploit the laws of one State to gain citizenship, they might frustrate the intentions of another State which had chosen to deny that right. For this reason, the new Constitution assumes the powers of conferring citizenship for the national government.


Finally, uniform laws concerning bankruptcy will prevent fraud.


Madison’s overall argument is that by transferring powers concerning foreign governments and the regulation of trade between States, the Union will avoid inconsistencies, conflict and legal quagmires.

6 February 2019