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 public councils, on the industry
and morals of people, and on the character of republican government,
constitutes an enormous debt against the State 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 hands of enterprising and
influential speculators, and snares to the more industrious and less
informed part of the community. They have seen, too, that one
legislative interference is but the first link of a long chain of
repetitions, every subsequent interference being naturally produced
by the effects of the preceding. They very rightly infer, therefore,
that some thorough reform is wanting, which will banish speculations
on public measures, inspire a general prudence and industry, and
give a regular course to the business of society. The prohibition
with respect to titles of nobility is copied from the articles of
Confederation, and needs no comment.
(2.) "No State shall, without the consent of the Congress, lay any
imposts or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws, and the net
produce of all duties and imposts laid by any State on imports or
exports, shall be for the use of the treasury of the United States;
and all such laws shall be subject to the revision and control of
the Congress. No State shall, without the consent of Congress, lay
any duty on tonnage, keep troops or ships of war in time of peace,
enter into any agreement or compact with another State, or with a
foreign power, or engage in war unless actually invaded, or in such
imminent danger as will not admit of delay."
The restraint on the power of the States over imports and exports is
enforced by all the arguments which prove the necessity of
submitting the regulation of trade to the federal councils. It is
needless, therefore, to remark further on this head, than that the
manner in which the restraint is qualified seems well calculated at
once to secure to the States reasonable discretion in providing for
the conveniency of their imports and exports, and to the United
States a reasonable check against the abuse of this discretion. The
remaining particulars of this clause fall within reasonings which
are either so obvious, or have been so fully developed, that they
may be passed over without remark.
The sixth and last class consists of the several powers and
provisions by which efficacy is given to all the rest.
(1.) Of these the first is, "the power to make all laws which shall
be necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in the
government of the United States, or in any department or office
thereof."
Few parts of the Constitution have been assailed with more
intemperance than this; yet on a fair investigation of it, no part
can appear more completely invulnerable. Without the substance of
this power, the whole Constitution would be a dead letter. Those who
object to the article, therefore, as a part of the Constitution, can
only mean that the form of the provision is improper. But have they
considered whether a better form could have been substituted?
There are four other possible methods which the Constitution might
have taken on this subject. They might have copied the second
article of the existing Confederation, which would have prohibited
the exercise of any power not expressly delegated; they might have
attempted a positive enumeration of the powers comprehended under
the general terms "necessary and proper"; they might have attempted
a negative enumeration of them, by specifying the powers excepted
from the general definition; they might have been altogether silent
on the subject, leaving these necessary and proper powers to
construction and inference.
Had the convention taken the first method of adopting the second
article of Confederation, it is evident that the new Congress would
be continually exposed, as their predecessors have been, to the
alternative of construing the term "expressly" with so much rigor,
as to disarm the government of all real authority whatever, or with
so much latitude as to destroy altogether the force of the
restriction. It would be easy to show, if it were necessary, that no
important power, delegated by the articles of Confederation, has
been or can be executed by Congress, without recurring more or less
to the doctrine of construction or implication. As the powers
delegated under the new system are more extensive, the government
which is to administer it would find itself still more distressed
with the alternative of betraying the public interests by doing
nothing, or of violating the Constitution by exercising powers
indispensably necessary and proper, but, at the same time, not
expressly granted.
Had the convention attempted a positive enumeration of the powers
necessary and proper for carrying their other powers into effect,
the attempt would have involved a complete digest of laws on every
subject to which the Constitution relates; accommodated too, not
only to the existing state of things, but to all the possible
changes which futurity may produce; for in every new application of
a general power, the particular powers, which are the means of
attaining the object of the general power, must always necessarily
vary with that object, and be often properly varied whilst the
object remains the same.
Had they attempted to enumerate the particular powers or means not
necessary or proper for carrying the general powers into execution,
the task would have been no less chimerical; and would have been
liable to this further objection, that every defect in the
enumeration would have been equivalent to a positive grant of
authority. If, to avoid this consequence, they had attempted a
partial enumeration of the exceptions, and described the residue by
the general terms, not necessary or proper, it must have happened
that the enumeration would comprehend a few of the excepted powers
only; that these would be such as would be least likely to be
assumed or tolerated, because the enumeration would of course select
such as would be least necessary or proper; and that the unnecessary
and improper powers included in the residuum, would be less forcibly
excepted, than if no partial enumeration had been made.
Had the Constitution been silent on this head, there can be no doubt
that all the particular powers requisite as means of executing the
general powers would have resulted to the government, by unavoidable
implication. No axiom is more clearly established in law, or in
reason, than that 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. Had this last
method, therefore, been pursued by the convention, every objection
now urged against their plan would remain in all its plausibility;
and the real inconveniency would be incurred of not removing a
pretext which may be seized on critical occasions for drawing into
question the essential powers of the Union.
If it be asked what is to be the consequence, in case the Congress
shall misconstrue this part of the Constitution, and exercise powers
not warranted by its true meaning, I answer, the same as if they
should misconstrue or enlarge any other power vested in them; as if
the general power had been reduced to particulars, and any one of
these were to be violated; the same, in short, as if the State
legislatures should violate their respective constitutional
authorities. In the first instance, the success of the usurpation
will depend on the executive and judiciary departments, which are to
expound and give effect to the legislative acts; and in the last
resort a remedy must be obtained from the people, who can, by the
election of more faithful representatives, annul the acts of the
usurpers. The truth is, that this ultimate redress may be more
confided in against unconstitutional acts of the federal than of the
State legislatures, for this plain reason, that as every such act of
the former will be an invasion of the rights of the latter, these
will be ever ready to mark the innovation, to sound the alarm to the
people, and to exert their local influence in effecting a change of
federal representatives. There being no such intermediate body
between the State legislatures and the people interested in watching
the conduct of the former, violations of the State constitutions are
more likely to remain unnoticed and unredressed.
(2.) "This Constitution and the laws of the United States which
shall be made in pursuance thereof, and all treaties made, or which
shall be made, under the authority of the United States, shall be
the supreme law of the land, and the judges in every State shall be
bound thereby, anything in the constitution or laws of any State to
the contrary notwithstanding."
The indiscreet zeal of the adversaries to the Constitution has
betrayed them into an attack on this part of it also, without which
it would have been evidently and radically defective. To be fully
sensible of this, we need only suppose for a moment that the
supremacy of the State constitutions had been left complete by a
saving clause in their favor.
In the first place, as these constitutions invest the State
legislatures with absolute sovereignty, in all cases not excepted by
the existing Articles of Confederation, all the authorities
contained in the proposed Constitution, so far as they exceed those
enumerated in the Confederation, would have been annulled, and the
new Congress would have been reduced to the same impotent condition
with their predecessors.
In the next place, as the constitutions of some of the States do not
even expressly and fully recognize the existing powers of the
Confederacy, an express saving of the supremacy of the former would,
in such States, have brought into question every power contained in
the proposed Constitution.
In the third place, as the constitutions of the States differ much
from each other, it might happen that a treaty or national law, of
great and equal importance to the States, would interfere with some
and not with other constitutions, and would consequently be valid in
some of the States, at the same time that it would have no effect in
others.
In fine, the world would have seen, for the first time, a system of
government founded on an inversion of the fundamental principles of
all government; 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.
(3.) "The Senators and Representatives, and the members of the
several State legislatures, and all executive and judicial officers,
both of the United States and the several States, shall be bound by
oath or affirmation to support this Constitution."
It has been asked why it was thought necessary, that the State
magistracy should be bound to support the federal Constitution, and
unnecessary that a like oath should be imposed on the officers of
the United States, in favor of the State constitutions.
Several reasons might be assigned for the distinction. I content
myself with one, which is obvious and conclusive. The members of the
federal government will have no agency in carrying the State
constitutions into effect. The members and officers of the State
governments, on the contrary, will have an essential agency in
giving effect to the federal Constitution. The election of the
President and Senate will depend, in all cases, on the legislatures
of the several States. And the election of the House of
Representatives will equally depend on the same authority in the
first instance; and will, probably, forever be conducted by the
officers, and according to the laws, of the States.
(4.) Among the provisions for giving efficacy to the federal powers
might be added those which belong to the executive and judiciary
departments; but as these are reserved for particular examination in
another place, I pass them over in this.
We have now reviewed, in detail, all the articles composing the sum
or quantity of power delegated by the proposed Constitution to the
federal government, and are brought to this undeniable conclusion,
that no part of the power is unnecessary or improper for
accomplishing the necessary objects of the Union. The question,
therefore, whether this amount of power shall be granted or not,
resolves itself into another questions, whether or not a government
commensurate to the exigencies of the Union shall be established;
or, in other words, whether the Union itself shall be preserved.
Signed "PUBLIUS"
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