Federalist No.44

Restrictions On The Authority Of The Several States

Friday, January 25, 1788

James Madison


44.1

In this paper Madison concludes his discussion of the powers conferred upon the federal government by the constitution, which he began in Federalist 41.

Fifth Class of Powers: Restraining States from Injurious Acts

44.2

The fifth class of powers concerned restraining states from injurious acts. Madison again enumerates specific pieces of legislation.

44.3

The first section of legislation is a restriction of states against:

44.4

He argues that the first restriction is necessary to effect uniformity in relationships with all foreign powers, as has been argued in other Federalist papers.

44.5

The second restriction is necessary to address the large debt owned by America since the War of Independence. That the ability to print paper money by the states would undermine efforts to control this debt and would lead to a multiplicity of currencies which would also hamper trade. Only gold and silver can be tendered by the States in payment of debts.

44.6

The third restriction is necessary for political and social stability. Bills of attainder – the possibility that legislation can illegalise a group or individual without trial – threaten the security and rights of individuals while ex post facto laws – that is, retrospective legislation – threatens the stability of commerce as much as anything else, and disadvantaging those who are less informed and creating a system in which those in the know might benefit.

44.7

Madison does not feel it necessary to explain why titles of nobility are banned.

44.8

The second section of legislation is a restriction of the states against:

44.9

Madison suggests that arguments for these restrictions have been well established in the Federalist papers already, and that the necessity of these restrictions are made by arguments that prove the necessity of the States to submit to the regulation of federal councils in these areas.

Sixth and last Class of Powers – Provisions to effectively manage the federal powers

44.10

1. This section addresses the power of the federal government to make laws to carry out the powers conferred on the federal government, already discusses. This would seem to be an obvious need, for without it, Madison states, the whole Constitution would be a dead letter.

44.11

He puts forward four hypothetical means by which this might have been death with otherwise.

44.12

First, is that they might have copied the second article of the existing Confederation. However, the wording of that article limits the exercise of power not expressly delegated. Madison argues this would either make the government impotent, or would require the government to exercise necessary powers outside the powers stated by the Constitution.

44.13

Second, is an attempt to positively enumerate the powers necessary to carry out other powers. The problem here is that it is not possible to anticipate all changes that the future might require.

44.14

Third, is to enumerate powers not necessary to carrying out the government’s general powers. But by listing powers that are banned, Madison argues, it effectively allows the exercise of any power not in the list, and makes it hard in the future to exclude anything that could have been on the list.

44.15

Finally, the Constitution might have not addressed the need for the power to make laws – that is, to have remained silent on the matter – since logically wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Madison argues that while this is logical, had this been the means by which the Convention addressed the issue, the objections to the exercise of Federal power being raised against the Constitution would have remained as potential points of conflict into the future.

44.16

Madison addresses what the real issue is: that there is a fear federal power will be abused by those who wield it. He points out that any power can be abused, and the States are just as open to abuse, if not more so. He suggests that given the States have an interest in the working of federal government, and any abuse of federal power will be an invasion of the rights of State power, it is more likely that the States will act as a mechanism to curb the abuse of federal power, and that their ability to rally support will be a check against that abuse. The State governments, he points out, are therefore more likely to abuse their given powers than the federal government.

44.17

2. Madison next addresses concerns about the stipulation that the federal Constitution shall be the supreme law of the land.

44.18

He argues that this is necessary, since if it were not so, the federal government would suffer the same impotency as that of the Confederation, especially since some of the states don’t even recognise the power of the Confederacy. In dealing with foreign nations or important national laws, there could arise situations in which foreign treaties or laws are not recognised by all states. Had the provision that the federal law was the supreme law not been included in the Constitution, Madison argues:

...it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.
44.19

In modern parlance, this is known as the tail wagging the dog.

44.20

3. The submission of the states is likewise extended to all State executive and judicial figures who must swear an oath to be bound by the federal Constitution. Madison argues this is necessary, since members and officers of State governments have responsibility for carrying out laws from the federal government, whereas no such responsibility weighs on members of the federal government to the states.

44.21

4. Madison concludes by saying that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union. Madison argues that these powers are essential, and without them it is questionable whether the union of States can be preserved.

25 February 2019