The Federalist Papers
require rather the encouragement of bounties, than to be loaded with
discouraging duties. A system of government, meant for duration, ought
to contemplate these revolutions, and be able to accommodate itself to
them.
Some, who have not denied the necessity of the power of taxation, have
grounded a very fierce attack against the Constitution, on the language
in which it is defined. It has been urged and echoed, that the power "to
lay and collect taxes, duties, imposts, and excises, to pay the debts,
and provide for the common defense and general welfare of the United
States," amounts to an unlimited commission to exercise every power
which may be alleged to be necessary for the common defense or general
welfare. No stronger proof could be given of the distress under which
these writers labor for objections, than their stooping to such a
misconstruction.
Had no other enumeration or definition of the powers of the Congress
been found in the Constitution, than the general expressions just cited,
the authors of the objection might have had some color for it; though
it would have been difficult to find a reason for so awkward a form of
describing an authority to legislate in all possible cases. A power to
destroy the freedom of the press, the trial by jury, or even to regulate
the course of descents, or the forms of conveyances, must be very
singularly expressed by the terms "to raise money for the general
welfare."
But what color can the objection have, when a specification of the
objects alluded to by these general terms immediately follows, and is
not even separated by a longer pause than a semicolon? If the different
parts of the same instrument ought to be so expounded, as to give
meaning to every part which will bear it, shall one part of the same
sentence be excluded altogether from a share in the meaning; and shall
the more doubtful and indefinite terms be retained in their full extent,
and the clear and precise expressions be denied any signification
whatsoever? For what purpose could the enumeration of particular powers
be inserted, if these and all others were meant to be included in the
preceding general power? Nothing is more natural nor common than first
to use a general phrase, and then to explain and qualify it by a recital
of particulars. But the idea of an enumeration of particulars which
neither explain nor qualify the general meaning, and can have no other
effect than to confound and mislead, is an absurdity, which, as we
are reduced to the dilemma of charging either on the authors of the
objection or on the authors of the Constitution, we must take the
liberty of supposing, had not its origin with the latter.
The objection here is the more extraordinary, as it appears that
the language used by the convention is a copy from the articles of
Confederation. The objects of the Union among the States, as described
in article third, are "their common defense, security of their
liberties, and mutual and general welfare." The terms of article eighth
are still more identical: "All charges of war and all other expenses
that shall be incurred for the common defense or general welfare, and
allowed by the United States in Congress, shall be defrayed out of a
common treasury," etc. A similar language again occurs in article ninth.
Construe either of these articles by the rules which would justify the
construction put on the new Constitution, and they vest in the existing
Congress a power to legislate in all cases whatsoever. But what would
have been thought of that assembly, if, attaching themselves to these
general expressions, and disregarding the specifications which ascertain
and limit their import, they had exercised an unlimited power of
providing for the common defense and general welfare? I appeal to the
objectors themselves, whether they would in that case have employed
the same reasoning in justification of Congress as they now make use of
against the convention. How difficult it is for error to escape its own
condemnation!
PUBLIUS
FEDERALIST No. 42
The Powers Conferred by the Constitution Further Considered
From the New York Packet. Tuesday, January 22, 1788.
MADISON
To the People of the State of New York:
THE SECOND class of powers, lodged in the general government, consists
of those which regulate the intercourse with foreign nations, to wit: to
make treaties; to send and receive ambassadors, other public ministers,
and consuls; to define and punish piracies and felonies committed on the
high seas, and offenses against the law of nations; to regulate foreign
commerce, including a power to prohibit, after the year 1808, the
importation of slaves, and to lay an intermediate duty of ten dollars
per head, as a discouragement to such importations.
This class of powers forms an obvious and essential branch of the
federal administration. If we are to be one nation in any respect, it
clearly ought to be in respect to other nations.
The powers to make treaties and to send and receive ambassadors, speak
their own propriety. Both of them are comprised in the articles
of Confederation, with this difference only, that the former is
disembarrassed, by the plan of the convention, of an exception, under
which treaties might be substantially frustrated by regulations of
the States; and that a power of appointing and receiving "other public
ministers and consuls," is expressly and very properly added to the
former provision concerning ambassadors. The term ambassador, if taken
strictly, as seems to be required by the second of the articles of
Confederation, comprehends the highest grade only of public ministers,
and excludes the grades which the United States will be most likely to
prefer, where foreign embassies may be necessary. And under no latitude
of construction will the term comprehend consuls. Yet it has been found
expedient, and has been the practice of Congress, to employ the inferior
grades of public ministers, and to send and receive consuls.
It is true, that where treaties of commerce stipulate for the mutual
appointment of consuls, whose functions are connected with commerce,
the admission of foreign consuls may fall within the power of making
commercial treaties; and that where no such treaties exist, the mission
of American consuls into foreign countries may PERHAPS be covered under
the authority, given by the ninth article of the Confederation, to
appoint all such civil officers as may be necessary for managing the
general affairs of the United States. But the admission of consuls into
the United States, where no previous treaty has stipulated it, seems to
have been nowhere provided for. A supply of the omission is one of the
lesser instances in which the convention have improved on the model
before them. But the most minute provisions become important when they
tend to obviate the necessity or the pretext for gradual and unobserved
usurpations of power. A list of the cases in which Congress have been
betrayed, or forced by the defects of the Confederation, into violations
of their chartered authorities, would not a little surprise those who
have paid no attention to the subject; and would be no inconsiderable
argument in favor of the new Constitution, which seems to have provided
no less studiously for the lesser, than the more obvious and striking
defects of the old.
The power to define and punish piracies and felonies committed on the
high seas, and offenses against the law of nations, belongs with equal
propriety to the general government, and is a still greater improvement
on the articles of Confederation. These articles contain no provision
for the case of offenses against the law of nations; and consequently
leave it in the power of any indiscreet member to embroil the
Confederacy with foreign nations. The provision of the federal articles
on the subject of piracies and felonies extends no further than to the
establishment of courts for the trial of these offenses. The definition
of piracies might, perhaps, without inconveniency, be left to the law
of nations; though a legislative definition of them is found in most
municipal codes. A definition of felonies on the high seas is evidently
requisite. Felony is a term of loose signification, even in the common
law of England; and of various import in the statute law of that
kingdom. But neither the common nor the statute law of that, or of any
other nation, ought to be a standard for the proceedings of this, unless
previously made its own by legislative adoption. The meaning of the
term, as defined in the codes of the several States, would be as
impracticable as the former would be a dishonorable and illegitimate
guide. It is not precisely the same in any two of the States; and
varies in each with every revision of its criminal laws. For the sake of
certainty and uniformity, therefore, the power of defining felonies in
this case was in every respect necessary and proper.
The regulation of foreign commerce, having fallen within several views
which have been taken of this subject, has been too fully discussed
to need additional proofs here of its being properly submitted to the
federal administration.
It were doubtless to be wished, that the power of prohibiting the
importation of slaves had not been postponed until the year 1808, or
rather that it had been suffered to have immediate operation. But it
is not difficult to account, either for this restriction on the general
government, or for the manner in which the whole clause is expressed.
It ought to be considered as a great point gained in favor of humanity,
that a period of twenty years may terminate forever, within these
States, a traffic which has so long and so loudly upbraided the
barbarism of modern policy; that within that period, it will receive
a considerable discouragement from the federal government, and may be
totally abolished, by a concurrence of the few States which continue the
unnatural traffic, in the prohibitory example which has been given by
so great a majority of the Union. Happy would it be for the unfortunate
Africans, if an equal prospect lay before them of being redeemed from
the oppressions of their European brethren!
Attempts have been made to pervert this clause into an objection
against the Constitution, by representing it on one side as a criminal
toleration of an illicit practice, and on another as calculated to
prevent voluntary and beneficial emigrations from Europe to America. I
mention these misconstructions, not with a view to give them an answer,
for they deserve none, but as specimens of the manner and spirit in
which some have thought fit to conduct their opposition to the proposed
government.
The powers included in the THIRD class are those which provide for the
harmony and proper intercourse among the States.
Under this head might be included the particular restraints imposed
on the authority of the States, and certain powers of the judicial
department; but the former are reserved for a distinct class, and the
latter will be particularly examined when we arrive at the structure
and organization of the government. I shall confine myself to a
cursory review of the remaining powers comprehended under this third
description, to wit: to regulate commerce among the several States and
the Indian tribes; to coin money, regulate the value thereof, and
of foreign coin; to provide for the punishment of counterfeiting the
current coin and securities of the United States; to fix the standard of
weights and measures; to establish a uniform rule of naturalization, and
uniform laws of bankruptcy, to prescribe the manner in which the public
acts, records, and judicial proceedings of each State shall be proved,
and the effect they shall have in other States; and to establish post
offices and post roads.