Federalist No.43

THE SAME SUBJECT CONTINUED

(The Powers Conferred by the Constitution Further Considered

Wednesday, January 23, 1788

James Madison


43.1

This paper continues the discussion of powers conferred by the constitution which Madison began discussing is Federalist 41 In that paper Madison described the fourth class of powers as Certain miscellaneous objects of general utilily. In this paper Madison addresses that fourth class of powers. In his discussion of each he numbers them throughout the paper.

1. Copyright

43.2

The first provision concerns copyright law which seems to have been unproblematically accepted as within the purview of the general government rather than individual state governments.

2. Cession of land

43.3

This provision allows for the cession of land by a state for the purpose of a place of Federal government. Of course, Washington DC didn’t become the capital until two years after the publication of this paper, so this was important to establish. Madison argues that a separate territory was needed. It should not be the burden of any one state. Madison points out that the cession would be voluntary and that the contributing state would be supported by the consent of its people who will find sufficient inducements of interest to support the cession. I assume that means they would benefit financially from the building of the capital city and its future presence.

43.4

Madison also argues that defensive infrastructure like forts and magazines should be under the power of the federal government, not a state, since their presence was to benefit not only individual states, but the nation.

3. Treason

43.5

Madison argues that treason must be tried and punished by the national government, not states, since claims of treason have sometimes been used as a political weapon. Under the federal constitution, treason would be clearly defined along with the proof needed to establish the crime. Interestingly, the crime is limited to the person of its author, suggesting to me that some had been implicated in the crime by association – perhaps by being a family member, even – in the past.

4. New States

43.6

This provision provides certain limitations on the creation of states which did not exist in the Articles of Confederation. In particular, new states could not be formed by partitioning existing states, and states could not be amalgamated into larger states without their consent and the consent of Congress.

5. Territorial claims

43.7

The constitution gives the government the power to makes rules and laws concerning territory not yet accepted into the United States. Importantly, it does not allow the constitution to be interpreted in any way that limits the rights of States or the federal government to make these rules and laws to their advantage.

6. Guarantee of state republican governments

43.8

Madison argues that the constitution must require states to be republican in their form, and may only change their state constitution if it is to adopt another form of republican government. Madison sees the possibility that a state might experiment in aristocratic or monarchical forms of government as a potential threat to the federal government itself, since state and federal constitutions are so interwoven … that a violent blow cannot be given to the one without communicating the wound to the other. In other words, a drift away from republicanism might eventually undermine the desire for republican government in general. Madison dismisses the argument that one state cannot be a threat, or that a minor uprising within a state cannot be a threat to the majority of the state. As is often the argument in these papers, the possibility that foreign agents or sympathisers might exist, or that latent anti-republican sentiment might draw wider support once it was initiated, is not beyond the bounds of Madison’s thinking. Madison dismisses the argument that a federal government would be powerless against a general uprising across the country as pointless to consider, since it would be unlikely and nothing could be done about it in those circumstances. But he argues that a federal government would be a strong independent arbiter in the case of internal state conflicts, and the system of a confederate republic would provide the resources to quell any local insurrection. To this end, Madison asserts that the federal government must retain the right to intercede in state affairs if they are contrary to the terms of the Constitution of the United States.

7. Former debts

43.9

The constitution guarantees all debts incurred prior to the ratification of the new constitution will be honoured.

8. Constitutional Amendments

43.10

Madison acknowledges the reality that the constitution may need to be amended from time to time, but that the process of amendment needs to guard against an ever-changing constitution. To this end amendments can be introduced by the general or state governments and passed with the support of three quarters of the states.

9. Ratification of the constitution

43.11

The proposed constitution was to be ratified by a vote of at least 9 of the 13 states which would bind all states to it. The obvious questions were how could a majority vote dissolve the Articles of Confederation which had been decided unanimously, and what relationship would then exist between the dissenters with those that ratified the constitution?

43.12

Madison answers the first question by arguing that some states ratified the Articles of Confederation through legislative authority rather than a representational vote. He argues that this reduces the compact between states under the Articles to a series of treaties, and since many of the terms of the Articles have been broken over time by states, like treaties, they should be considered broken.

43.13

Concerning the second question, Madison argues that superseding political relationships are questions of moral obligations, of common humanity and common interests which must be maintained. If the constitution is ratified, it is in everyone’s interest to adopt it as soon as possible.

17 February 2019