The Federalist Papers
collected from their proceedings, that they were deeply and unanimously
impressed with the crisis, which had led their country almost with one
voice to make so singular and solemn an experiment for correcting the
errors of a system by which this crisis had been produced; that they
were no less deeply and unanimously convinced that such a reform as they
have proposed was absolutely necessary to effect the purposes of
their appointment. It could not be unknown to them that the hopes
and expectations of the great body of citizens, throughout this great
empire, were turned with the keenest anxiety to the event of their
deliberations. They had every reason to believe that the contrary
sentiments agitated the minds and bosoms of every external and internal
foe to the liberty and prosperity of the United States. They had seen in
the origin and progress of the experiment, the alacrity with which
the PROPOSITION, made by a single State (Virginia), towards a partial
amendment of the Confederation, had been attended to and promoted. They
had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW
States, convened at Annapolis, of recommending a great and critical
object, wholly foreign to their commission, not only justified by the
public opinion, but actually carried into effect by twelve out of the
thirteen States. They had seen, in a variety of instances, assumptions
by Congress, not only of recommendatory, but of operative, powers,
warranted, in the public estimation, by occasions and objects infinitely
less urgent than those by which their conduct was to be governed.
They must have reflected, that in all great changes of established
governments, forms ought to give way to substance; that a rigid
adherence in such cases to the former, would render nominal and nugatory
the transcendent and precious right of the people to "abolish or alter
their governments as to them shall seem most likely to effect their
safety and happiness,"(2) since it is impossible for the people
spontaneously and universally to move in concert towards their object;
and it is therefore essential that such changes be instituted by some
INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and
respectable citizen or number of citizens. They must have recollected
that it was by this irregular and assumed privilege of proposing to the
people plans for their safety and happiness, that the States were first
united against the danger with which they were threatened by their
ancient government; that committees and congresses were formed for
concentrating their efforts and defending their rights; and that
CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the
constitutions under which they are now governed; nor could it have been
forgotten that no little ill-timed scruples, no zeal for adhering
to ordinary forms, were anywhere seen, except in those who wished
to indulge, under these masks, their secret enmity to the substance
contended for. They must have borne in mind, that as the plan to be
framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the
disapprobation of this supreme authority would destroy it forever; its
approbation blot out antecedent errors and irregularities. It might
even have occurred to them, that where a disposition to cavil prevailed,
their neglect to execute the degree of power vested in them, and still
more their recommendation of any measure whatever, not warranted
by their commission, would not less excite animadversion, than a
recommendation at once of a measure fully commensurate to the national
exigencies.
Had the convention, under all these impressions, and in the midst of all
these considerations, instead of exercising a manly confidence in their
country, by whose confidence they had been so peculiarly distinguished,
and of pointing out a system capable, in their judgment, of securing
its happiness, taken the cold and sullen resolution of disappointing
its ardent hopes, of sacrificing substance to forms, of committing the
dearest interests of their country to the uncertainties of delay and
the hazard of events, let me ask the man who can raise his mind to one
elevated conception, who can awaken in his bosom one patriotic emotion,
what judgment ought to have been pronounced by the impartial world, by
the friends of mankind, by every virtuous citizen, on the conduct and
character of this assembly? Or if there be a man whose propensity to
condemn is susceptible of no control, let me then ask what sentence he
has in reserve for the twelve States who USURPED THE POWER of
sending deputies to the convention, a body utterly unknown to their
constitutions; for Congress, who recommended the appointment of this
body, equally unknown to the Confederation; and for the State of New
York, in particular, which first urged and then complied with this
unauthorized interposition?
But that the objectors may be disarmed of every pretext, it shall be
granted for a moment that the convention were neither authorized
by their commission, nor justified by circumstances in proposing a
Constitution for their country: does it follow that the Constitution
ought, for that reason alone, to be rejected? If, according to the noble
precept, it be lawful to accept good advice even from an enemy, shall we
set the ignoble example of refusing such advice even when it is offered
by our friends? The prudent inquiry, in all cases, ought surely to be,
not so much FROM WHOM the advice comes, as whether the advice be GOOD.
The sum of what has been here advanced and proved is, that the charge
against the convention of exceeding their powers, except in one instance
little urged by the objectors, has no foundation to support it; that
if they had exceeded their powers, they were not only warranted,
but required, as the confidential servants of their country, by the
circumstances in which they were placed, to exercise the liberty which
they assume; and that finally, if they had violated both their
powers and their obligations, in proposing a Constitution, this ought
nevertheless to be embraced, if it be calculated to accomplish the views
and happiness of the people of America. How far this character is due to
the Constitution, is the subject under investigation.
PUBLIUS
1. Connecticut and Rhode Island.
2. Declaration of Independence.
FEDERALIST No. 41
General View of the Powers Conferred by The Constitution
For the Independent Journal. Saturday, January 19, 1788
MADISON
To the People of the State of New York:
THE Constitution proposed by the convention may be considered under
two general points of view. The FIRST relates to the sum or quantity of
power which it vests in the government, including the restraints
imposed on the States. The SECOND, to the particular structure of
the government, and the distribution of this power among its several
branches.
Under the FIRST view of the subject, two important questions arise: 1.
Whether any part of the powers transferred to the general government be
unnecessary or improper? 2. Whether the entire mass of them be dangerous
to the portion of jurisdiction left in the several States?
Is the aggregate power of the general government greater than ought to
have been vested in it? This is the FIRST question.
It cannot have escaped those who have attended with candor to the
arguments employed against the extensive powers of the government, that
the authors of them have very little considered how far these powers
were necessary means of attaining a necessary end. They have chosen
rather to dwell on the inconveniences which must be unavoidably blended
with all political advantages; and on the possible abuses which must be
incident to every power or trust, of which a beneficial use can be made.
This method of handling the subject cannot impose on the good sense of
the people of America. It may display the subtlety of the writer; it may
open a boundless field for rhetoric and declamation; it may inflame
the passions of the unthinking, and may confirm the prejudices of the
misthinking: but cool and candid people will at once reflect, that the
purest of human blessings must have a portion of alloy in them; that the
choice must always be made, if not of the lesser evil, at least of the
GREATER, not the PERFECT, good; and that in every political institution,
a power to advance the public happiness involves a discretion which may
be misapplied and abused. They will see, therefore, that in all cases
where power is to be conferred, the point first to be decided is,
whether such a power be necessary to the public good; as the next will
be, in case of an affirmative decision, to guard as effectually as
possible against a perversion of the power to the public detriment.
That we may form a correct judgment on this subject, it will be proper
to review the several powers conferred on the government of the Union;
and that this may be the more conveniently done they may be reduced into
different classes as they relate to the following different objects: 1.
Security against foreign danger; 2. Regulation of the intercourse with
foreign nations; 3. Maintenance of harmony and proper intercourse among
the States; 4. Certain miscellaneous objects of general utility; 5.
Restraint of the States from certain injurious acts; 6. Provisions for
giving due efficacy to all these powers.
The powers falling within the FIRST class are those of declaring war
and granting letters of marque; of providing armies and fleets; of
regulating and calling forth the militia; of levying and borrowing
money.
Security against foreign danger is one of the primitive objects of civil
society. It is an avowed and essential object of the American Union. The
powers requisite for attaining it must be effectually confided to the
federal councils.
Is the power of declaring war necessary? No man will answer this
question in the negative. It would be superfluous, therefore, to enter
into a proof of the affirmative. The existing Confederation establishes
this power in the most ample form.
Is the power of raising armies and equipping fleets necessary? This
is involved in the foregoing power. It is involved in the power of
self-defense.
But was it necessary to give an INDEFINITE POWER of raising TROOPS, as
well as providing fleets; and of maintaining both in PEACE, as well as
in WAR?
The answer to these questions has been too far anticipated in another
place to admit an extensive discussion of them in this place. The answer
indeed seems to be so obvious and conclusive as scarcely to justify such
a discussion in any place. With what color of propriety could the force
necessary for defense be limited by those who cannot limit the force
of offense? If a federal Constitution could chain the ambition or set
bounds to the exertions of all other nations, then indeed might it
prudently chain the discretion of its own government, and set bounds to
the exertions for its own safety.
How could a readiness for war in time of peace be safely prohibited,
unless we could prohibit, in like manner, the preparations and
establishments of every hostile nation? The means of security can only
be regulated by the means and the danger of attack. They will, in fact,
be ever determined by these rules, and by no others. It is in vain to
oppose constitutional barriers to the impulse of self-preservation.
It is worse than in vain; because it plants in the Constitution itself
necessary usurpations of power, every precedent of which is a germ
of unnecessary and multiplied repetitions. If one nation maintains
constantly a disciplined army, ready for the service of ambition or
revenge, it obliges the most pacific nations who may be within the reach
of its enterprises to take corresponding precautions. The fifteenth