The Federalist Papers
Among the advantages of a confederate republic enumerated by
Montesquieu, an important one is, "that should a popular insurrection
happen in one of the States, the others are able to quell it. Should
abuses creep into one part, they are reformed by those that remain
sound."
7. "To consider all debts contracted, and engagements entered into,
before the adoption of this Constitution, as being no less valid
against the United States, under this Constitution, than under the
Confederation."
This can only be considered as a declaratory proposition; and may have
been inserted, among other reasons, for the satisfaction of the foreign
creditors of the United States, who cannot be strangers to the pretended
doctrine, that a change in the political form of civil society has the
magical effect of dissolving its moral obligations.
Among the lesser criticisms which have been exercised on the
Constitution, it has been remarked that the validity of engagements
ought to have been asserted in favor of the United States, as well
as against them; and in the spirit which usually characterizes little
critics, the omission has been transformed and magnified into a plot
against the national rights. The authors of this discovery may be told,
what few others need to be informed of, that as engagements are in
their nature reciprocal, an assertion of their validity on one side,
necessarily involves a validity on the other side; and that as the
article is merely declaratory, the establishment of the principle in one
case is sufficient for every case. They may be further told, that
every constitution must limit its precautions to dangers that are
not altogether imaginary; and that no real danger can exist that the
government would DARE, with, or even without, this constitutional
declaration before it, to remit the debts justly due to the public, on
the pretext here condemned.
8. "To provide for amendments to be ratified by three fourths of the
States under two exceptions only."
That useful alterations will be suggested by experience, could not but
be foreseen. It was requisite, therefore, that a mode for introducing
them should be provided. The mode preferred by the convention seems to
be stamped with every mark of propriety. It guards equally against that
extreme facility, which would render the Constitution too mutable; and
that extreme difficulty, which might perpetuate its discovered faults.
It, moreover, equally enables the general and the State governments to
originate the amendment of errors, as they may be pointed out by the
experience on one side, or on the other. The exception in favor of the
equality of suffrage in the Senate, was probably meant as a palladium
to the residuary sovereignty of the States, implied and secured by that
principle of representation in one branch of the legislature; and
was probably insisted on by the States particularly attached to that
equality. The other exception must have been admitted on the same
considerations which produced the privilege defended by it.
9. "The ratification of the conventions of nine States shall be
sufficient for the establishment of this Constitution between the
States, ratifying the same."
This article speaks for itself. The express authority of the people
alone could give due validity to the Constitution. To have required the
unanimous ratification of the thirteen States, would have subjected
the essential interests of the whole to the caprice or corruption of
a single member. It would have marked a want of foresight in the
convention, which our own experience would have rendered inexcusable.
Two questions of a very delicate nature present themselves on this
occasion: 1. On what principle the Confederation, which stands in the
solemn form of a compact among the States, can be superseded without the
unanimous consent of the parties to it? 2. What relation is to subsist
between the nine or more States ratifying the Constitution, and the
remaining few who do not become parties to it?
The first question is answered at once by recurring to the absolute
necessity of the case; to the great principle of self-preservation; to
the transcendent law of nature and of nature's God, which declares
that the safety and happiness of society are the objects at which all
political institutions aim, and to which all such institutions must
be sacrificed. PERHAPS, also, an answer may be found without searching
beyond the principles of the compact itself. It has been heretofore
noted among the defects of the Confederation, that in many of the States
it had received no higher sanction than a mere legislative ratification.
The principle of reciprocality seems to require that its obligation
on the other States should be reduced to the same standard. A compact
between independent sovereigns, founded on ordinary acts of legislative
authority, can pretend to no higher validity than a league or treaty
between the parties. It is an established doctrine on the subject of
treaties, that all the articles are mutually conditions of each other;
that a breach of any one article is a breach of the whole treaty; and
that a breach, committed by either of the parties, absolves the others,
and authorizes them, if they please, to pronounce the compact violated
and void. Should it unhappily be necessary to appeal to these delicate
truths for a justification for dispensing with the consent of particular
States to a dissolution of the federal pact, will not the complaining
parties find it a difficult task to answer the MULTIPLIED and IMPORTANT
infractions with which they may be confronted? The time has been when it
was incumbent on us all to veil the ideas which this paragraph exhibits.
The scene is now changed, and with it the part which the same motives
dictate.
The second question is not less delicate; and the flattering prospect of
its being merely hypothetical forbids an overcurious discussion of it.
It is one of those cases which must be left to provide for itself. In
general, it may be observed, that although no political relation can
subsist between the assenting and dissenting States, yet the moral
relations will remain uncancelled. The claims of justice, both on one
side and on the other, will be in force, and must be fulfilled; the
rights of humanity must in all cases be duly and mutually respected;
whilst considerations of a common interest, and, above all, the
remembrance of the endearing scenes which are past, and the anticipation
of a speedy triumph over the obstacles to reunion, will, it is hoped,
not urge in vain MODERATION on one side, and PRUDENCE on the other.
PUBLIUS
FEDERALIST No. 44
Restrictions on the Authority of the Several States
From the New York Packet. Friday, January 25, 1788.
MADISON
To the People of the State of New York:
A FIFTH class of provisions in favor of the federal authority consists
of the following restrictions on the authority of the several States:
1. "No State shall enter into any treaty, alliance, or confederation;
grant letters of marque and reprisal; coin money; emit bills of credit;
make any thing but gold and silver a legal tender in payment of debts;
pass any bill of attainder, ex post facto law, or law impairing the
obligation of contracts; or grant any title of nobility."
The prohibition against treaties, alliances, and confederations makes
a part of the existing articles of Union; and for reasons which need
no explanation, is copied into the new Constitution. The prohibition
of letters of marque is another part of the old system, but is somewhat
extended in the new. According to the former, letters of marque could
be granted by the States after a declaration of war; according to the
latter, these licenses must be obtained, as well during war as previous
to its declaration, from the government of the United States. This
alteration is fully justified by the advantage of uniformity in all
points which relate to foreign powers; and of immediate responsibility
to the nation in all those for whose conduct the nation itself is to be
responsible.
The right of coining money, which is here taken from the States, was
left in their hands by the Confederation, as a concurrent right with
that of Congress, under an exception in favor of the exclusive right of
Congress to regulate the alloy and value. In this instance, also, the
new provision is an improvement on the old. Whilst the alloy and value
depended on the general authority, a right of coinage in the particular
States could have no other effect than to multiply expensive mints and
diversify the forms and weights of the circulating pieces. The latter
inconveniency defeats one purpose for which the power was originally
submitted to the federal head; and as far as the former might prevent
an inconvenient remittance of gold and silver to the central mint for
recoinage, the end can be as well attained by local mints established
under the general authority.
The extension of the prohibition to bills of credit must give pleasure
to every citizen, in proportion to his love of justice and his knowledge
of the true springs of public prosperity. The loss which America has
sustained since the peace, from the pestilent effects of paper money
on the necessary confidence between man and man, on the necessary
confidence in the public councils, on the industry and morals of the
people, and on the character of republican government, constitutes an
enormous debt against the States chargeable with this unadvised measure,
which must long remain unsatisfied; or rather an accumulation of guilt,
which can be expiated no otherwise than by a voluntary sacrifice on the
altar of justice, of the power which has been the instrument of it. In
addition to these persuasive considerations, it may be observed, that
the same reasons which show the necessity of denying to the States the
power of regulating coin, prove with equal force that they ought not
to be at liberty to substitute a paper medium in the place of coin. Had
every State a right to regulate the value of its coin, there might be as
many different currencies as States, and thus the intercourse among them
would be impeded; retrospective alterations in its value might be made,
and thus the citizens of other States be injured, and animosities be
kindled among the States themselves. The subjects of foreign powers
might suffer from the same cause, and hence the Union be discredited
and embroiled by the indiscretion of a single member. No one of these
mischiefs is less incident to a power in the States to emit paper money,
than to coin gold or silver. The power to make any thing but gold and
silver a tender in payment of debts, is withdrawn from the States, on
the same principle with that of issuing a paper currency.
Bills of attainder, ex post facto laws, and laws impairing the
obligation of contracts, are contrary to the first principles of the
social compact, and to every principle of sound legislation. The two
former are expressly prohibited by the declarations prefixed to some of
the State constitutions, and all of them are prohibited by the spirit
and scope of these fundamental charters. Our own experience has taught
us, nevertheless, that additional fences against these dangers ought not
to be omitted. Very properly, therefore, have the convention added this
constitutional bulwark in favor of personal security and private rights;
and I am much deceived if they have not, in so doing, as faithfully
consulted the genuine sentiments as the undoubted interests of their
constituents. The sober people of America are weary of the fluctuating
policy which has directed the public councils. They have seen
with regret and indignation that sudden changes and legislative
interferences, in cases affecting personal rights, become jobs in the