In Federalist 47, one of the more famous of the Federalist Papers, Madison examines the separation of powers under the Constitution. Anti-federalists had been objecting to the Constitution on the basis that the legislative, executive, and judicial branches were insufficiently separated.
Madison agrees that separation of powers is essential for good government: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny." He disagrees, as you might suspect, that the Constitution lacks such separation. In doing so, Madison refers (as all Enlightenment thinkers must) to Montesquieu, the expert on the philosophy of governments.
Madison contrasts the Constitution with that bugbear of American revolutionaries, the British "Constitution." In Britain, then and even more so now, there was and is no separation of powers. The executive could control Parliament pretty well in those days, and the Parliament and the King controlled the judges, too. (Today, the Parliament has let the judges be somewhat more independent, but the crown is effectively a nullity and no independent executive has taken its place.) Madison points out, however, that Montesquieu admired the British system, even with its incomplete separation.
From this, Madison interprets Montesquieu to mean that where the whole power of one branch is in the same hands as the whole power of another, there is tyranny; but where some powers overlap to some extent, there can still be free government. Where the same man can enact a law and execute it, or where the same man may enact a law and judge violations of it, Madison writes, there is tyranny. This was not the case under the British system, and is even less true of the American Constitution.
Madison turns his examination from the general to the specific, and looks at the constitutions of the states. The states would all insist that their constitutions ensure liberty and separation of powers, and yet the separation is not complete: New Hampshire's governor was elected by the legislature; in Massachusetts, the legislature appointed executive officers and may impeach the governor; the same was true of New York; in New Jersey, the governor was a member of the Supreme Court; Pennsylvania's legislature could impeach the judiciary officers; in Delaware, some members of the legislature were automatically justices of the peace; Maryland, again, has the executive appointed by the legislature; in Virginia, county judges may sit in the legislature; in both Carolinas, the legislature appoints inferior executive officers; and finally, in Georgia, the legislature appoints justices of the peace and exercises the pardoning power.
The point of all that is for Madison to show that the branches may (and even must) interact. It is a complete overlap of powers, rather than a sharing or interaction of powers, that opens the door to tyranny.
Friday, October 17, 2008
The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts (No. 47)
Tuesday, September 23, 2008
The Influence of the State and Federal Governments Compared (No. 46)
In Federalist 46, Madison continues to examine whether the states or the feds will be more powerful under the proposed Constitution. He begins with the point that "both of them as substantially dependent on the great body of the citizens of the United States." Ultimately, he writes, the question is kind of irrelevant -- the people are in charge, and whether they exercise their power through one government or another is not the most important thing.
Sensing that this explanation will not mollify the anti-Federalists, he continues to explain that people are more naturally attached to their local governments. In those days, before the phenomenon of nationalism, this made sense. The states have been around longer, and the people are more likely to be familiar with their local leaders than with some distant bureaucrat. Today, however, with people moving around more and with the nation mattering more in people's worldview, I think the situation has been reversed.
Madison admits that the situation in 1788 might change: "If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities." I don't know if people today identify as Americans rather than Pennsylvanians or Nevadans because the federal government is a better administration; I think it's more likely that it's just bigger and more powerful, and that the differences among the states have faded.
As the character of the federal Congresses of the past is concerned, Madison writes that they have often acted in the national interest, even when it disadvantaged their own states. This is probably correct, but one must note that this was in the days before Congress had any money to give out.
Madison closes: "On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them."
Was he wrong? Yes, but it took more than a century for these "chimerical fears" to come true, and even then the people could have stopped it if they'd wanted to. So, if the chimera has come to exist outside of anti-Federalists' nightmares, it is not because the Constitution was flawed, but because the people were imperfect guardians of our own liberty.
Sensing that this explanation will not mollify the anti-Federalists, he continues to explain that people are more naturally attached to their local governments. In those days, before the phenomenon of nationalism, this made sense. The states have been around longer, and the people are more likely to be familiar with their local leaders than with some distant bureaucrat. Today, however, with people moving around more and with the nation mattering more in people's worldview, I think the situation has been reversed.
Madison admits that the situation in 1788 might change: "If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities." I don't know if people today identify as Americans rather than Pennsylvanians or Nevadans because the federal government is a better administration; I think it's more likely that it's just bigger and more powerful, and that the differences among the states have faded.
As the character of the federal Congresses of the past is concerned, Madison writes that they have often acted in the national interest, even when it disadvantaged their own states. This is probably correct, but one must note that this was in the days before Congress had any money to give out.
Madison closes: "On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them."Was he wrong? Yes, but it took more than a century for these "chimerical fears" to come true, and even then the people could have stopped it if they'd wanted to. So, if the chimera has come to exist outside of anti-Federalists' nightmares, it is not because the Constitution was flawed, but because the people were imperfect guardians of our own liberty.
Wednesday, September 17, 2008
Announcement
I know dozens of you are waiting for the next installment of the Federalist Papers. Well, I'll get to it. I promise! But first, a new blog announcement:
I've begun blogging at a new site, The Closet Moderate. It's a collaborative effort, so you'll get a wider variety of issues and opinions than you do here. Plus, we post more frequently. What's it all about? Hard to say -- right now, we're just writing about whatever comes up. But this post should give you a more extended welcome. So check it out, and stay tuned here, as well, for more Federalist action.
I've begun blogging at a new site, The Closet Moderate. It's a collaborative effort, so you'll get a wider variety of issues and opinions than you do here. Plus, we post more frequently. What's it all about? Hard to say -- right now, we're just writing about whatever comes up. But this post should give you a more extended welcome. So check it out, and stay tuned here, as well, for more Federalist action.
Friday, August 15, 2008
The Alleged Danger From the Powers of the Union to the State Governments Considered (No. 45)
Hello! Bet you all thought I quit blogging, eh? I slacked off for a while because of vacation and because blogger.com was giving me some trouble, but now I'm back and I aim to see this thing through to completion. Huzzah!
On with the show: Federalist 45 continues Madison's examination of the federal government's new powers, and the threat they allegedly pose to the states. Earlier, he discussed individual parts of the Constitution and showed how none of them imperiled states' rights. Now, Madison looks at whether all of the powers, taken as a whole, could pose a danger to the states even when any one of the powers alone would not do so.
Madison starts out with rhetorical flourish, asking about the point of the Revolution: "Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?" The answer, as with all rhetorical questions, is "no." The Revolution was fought for the rights of free men, not of state governments, he says, and I think that is consistent with the historical record.
He then performs the historical analysis that Hamilton so enjoyed in earlier papers. In brief: when other federal-like systems existed in the past, power remained concentrated at the lower levels, despite the best efforts of the central government. Further, in the proposed Constitution, the participation of the states is necessary in forming and maintaining the federal government. If it looked like the feds were going to crush the states' rights, it would be easy for the states to reassert themselves.
Madison states that the small size of the federal government means that it will always be inferior in power to the states. "The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States." Is this still true? The census bureau tells us* that there were 2.69 million federal employees in 2002. State and local governments employed 18.34 million that same year. The states' payrolls actually grew much faster, too, moving from a 2:1 ratio in 1955 to the 9:1 ratio cited above in 2002. So, by the numbers, Madison is quite right.
What he did not anticipate was the states' abdication of power. The Constitution's checks and balances are premised on the realist idea that all people and groups in government will seek to aggrandize themselves. The three branches are supposed to check and balance each other (as are the federal and state governments) to ensure that no one person or branch accrues too much of the power they seek.
In Madison's day, this was true, but since then the states' governments, like the Congress, prefer to criticize than to make hard decisions. It's much easier -- and much safer -- for a politician to complain about the President's decision than to make that decision himself. The Founding Fathers thought that men were capable of all manner of vice in gaining power, but they never imagined how easily they would give it away.
*This 300-page PDF explains in more detail the stats I've cited. These figures don't include the armed forces -- another 1.42 million federal employees in 2008.
On with the show: Federalist 45 continues Madison's examination of the federal government's new powers, and the threat they allegedly pose to the states. Earlier, he discussed individual parts of the Constitution and showed how none of them imperiled states' rights. Now, Madison looks at whether all of the powers, taken as a whole, could pose a danger to the states even when any one of the powers alone would not do so.
Madison starts out with rhetorical flourish, asking about the point of the Revolution: "Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?" The answer, as with all rhetorical questions, is "no." The Revolution was fought for the rights of free men, not of state governments, he says, and I think that is consistent with the historical record.
He then performs the historical analysis that Hamilton so enjoyed in earlier papers. In brief: when other federal-like systems existed in the past, power remained concentrated at the lower levels, despite the best efforts of the central government. Further, in the proposed Constitution, the participation of the states is necessary in forming and maintaining the federal government. If it looked like the feds were going to crush the states' rights, it would be easy for the states to reassert themselves.
Madison states that the small size of the federal government means that it will always be inferior in power to the states. "The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States." Is this still true? The census bureau tells us* that there were 2.69 million federal employees in 2002. State and local governments employed 18.34 million that same year. The states' payrolls actually grew much faster, too, moving from a 2:1 ratio in 1955 to the 9:1 ratio cited above in 2002. So, by the numbers, Madison is quite right.
What he did not anticipate was the states' abdication of power. The Constitution's checks and balances are premised on the realist idea that all people and groups in government will seek to aggrandize themselves. The three branches are supposed to check and balance each other (as are the federal and state governments) to ensure that no one person or branch accrues too much of the power they seek.
In Madison's day, this was true, but since then the states' governments, like the Congress, prefer to criticize than to make hard decisions. It's much easier -- and much safer -- for a politician to complain about the President's decision than to make that decision himself. The Founding Fathers thought that men were capable of all manner of vice in gaining power, but they never imagined how easily they would give it away.
*This 300-page PDF explains in more detail the stats I've cited. These figures don't include the armed forces -- another 1.42 million federal employees in 2008.
Tuesday, June 03, 2008
Restrictions on the Authority of the Several States (No. 44)
Wow, that last post was a long one! I'll keep this one short:
In Federalist 44, Mr. Madison examines the powers that the Constitution specifically denies to the states -- something sure to provoke the ire of anti-Federalists. There are several of these limitations:
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.
Many of these bar states from doing things that would contradict the federal government's role; for instance, New York may not sign a treaty with Mexico to blockade New Jersey, though they would dearly love to do so. Only the federal government may deal with foreign nations.
Other restrictions here prevent the states from duplicating federal powers. No state may coin money, nor may a state make any currency that is not gold or silver legal tender for payment of debts. Actually, I have to scratch my head at this one. I paid my Pennsylvania income tax this year in legal tender that is backed in neither gold nor silver. I think the difference is that Pennsylvania did not make my dollar bills legal tender; the federal government did. Pennsylvania just accepted them as legal tender. Madison's explanation, referencing the deleterious effects of state-issued paper money, should delight hard currency men. States are also prevented from duplicating the federal power to impose tariffs.
The clause quoted above also prevents states from making a few of the more awful kinds of laws: bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts. These were all abuses practiced by the British Parliament in Madison's day, and the Founding Fathers felt it best to prevent this sort of thing from taking hold here. Briefly: a bill of attainder is a legislative act that declares a particular person guilty of a crime without the bother of holding a trial; an ex post facto law is one that punishes something that happened before the law was passed; and a law impairing contract is, well, a law that overturns people's contractual rights. This law, passed in England in 1660, is both a bill of attainder and ex post facto.
That done, Madison turns to those provisions "by which efficacy is given to all the rest." The most obvious of these is the old "necessary and proper" clause, which states that Congress may
"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 Officer thereof."
We've discussed this once before, so I'll be brief. Apparently, the anti-Federalists had been banging away at this expansive clause, so Madison defended it again, though Hamilton had already done so in #33. Madison reiterates that this clause does not add any powers, but only clarifies that Congress may do what must be done to give force to the narrow, enumerated powers in the Constitution. What if Congress violates the "necessary" part, and starts doing whatever it wants? He says it's quite unlikely, since all three branches would have to agree to violate the Constitution, an unlikely event, indeed. Even if this did happen, Madison writes, the States would resent the interference with their powers, and "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."Finally, Madison adds some discussion about the oaths that state legislators must take to the federal Constitution, and the clause that declares the Constitution the supreme law of the land. That the Constitution is supreme is already evident from its terms -- this just make it more explicit, should any doubt it. The oaths, Madison notes, are essential because in those days most federal laws were carried out by state officers. Even today, there are no federal elections, just state elections for federal offices. If the state officers aren't loyal to the Constitution, how can the federal government carry out its will? Today, the answer is easy: through an army of bureaucrats. In 1788, however, an oath was the next best thing.
Friday, May 30, 2008
The Same Subject Continued (No. 43)
Federalist 43 is kind of a catch-all: a discussion of all the powers delegated to the federal government that weren't in Madison's first three classes of powers. There's not much of a coherence among these powers, so I will discuss them one by one, as Madison did.
Firstly, Madison notes that the federal government would have the power to regulate intellectual property; that is, copyright, trademarks, and patents. He thinks this is obviously a good idea, and doesn't dwell too long on it. He's right: having each state enforce its own patents and such would be a nightmare. Some system of intellectual property rights must exist to encourage development, so it should probably be a unified federal system.
Next, he examines the power to create a federal district and exercise jurisdiction over it. This power, in a few years' time, would result in the establishment of Washington, D.C. The Constitution doesn't specify where the federal district would go, and the debate over the location of the new capital would get quite heated. Madison and the other authors of the Constitution rightly recognized that having the capital in a state would give that state too much power over the federal government, which was in those days quite weak. What no one at the time considered was the possibility that the capital district would get so populous that it would agitate for its own representation as a state. Despite many proposals in the 200 years since, this problem remains unresolved.
The third provisions Madison examines deals with treason, and how to punish it. If treason is against the United States, Madison reasons, the United States must be able to punish it. But limits are important. Under the British system, all sorts of anti-administration activity was classed as treason, and in the rest of Europe it was even more egregious. As he writes, "as new-fangled and artificial treasons have been the great engines by which violent factions ... by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author." This ensures that even if one administration or other wishes to punish its enemies, treason will be unavailable as an accusation except for serious crimes against the nation. This provision likely kept the United States from degenerating into a republic where changes in government are accompanied by bloodshed.
Next, Madison discusses the power to admit new states to the Union. This seems obvious now, but at the time it was unclear whether and how new states were to be formed from the western lands or elsewhere. The Confederation government had taken the lead by erecting new territories in the Old Northwest, but this provision made certain that any state formed there would be admitted and treated the same as the original thirteen. Along the same lines is a fifth power, the power to govern the federal territories that are not yet states. This was not terribly controversial at the time, but would become so in the days leading up to the Civil War. Since then, it has been uncontroversial once more.
The sixth power Madison discusses is the so-called Republican Guaranty clause, or the power to ensure that every state has a republican form of government. This made anti-Federalists nervous: what if the federal government decided that their state was insufficiently republican? Would the feds be able to rewrite the state's constitution to its liking? This was troubling since then, as now, no one knew exactly what this clause meant. All the states had different voting rights, different labor rights (i.e., slavery) and so on. Were they all equally republican?
Madison seeks to set the people's minds at ease: the guaranty, he says, "supposes a pre-existing government of the form which is to be guaranteed." As long as the keep up the same degree of a republic as they had in 1788, there can be no complaint from the feds, right? As long as the states have some sort of a republic, as they currently understood the term, there was no problem. Only the introduction of "aristocratic or monarchial innovations" would violate the clause. That's not a terribly exact explanation, and while it came up from time to time, no one ever really figured out what it meant.
Seventh, he discusses the provision that says the debts the United States contracted before the Constitution will still be valid afterward. Basically: we'll still pay our bills if this thing passes. This should've kept bankers from being opposed to the Constitution, anyway.
Eighth, he briefly mentions the amendment process. As much as the Publius authorship group likes the Constitution, they know it's not perfect and that defects may emerge later, as they did under the Articles. If so, and if enough people think it's a problem, it can be fixed. We've done it twenty-eight times since then and, while it's not easy, it's a much better solution than having revolutions all the time like France.
Lastly, Madison talks about the ratification process. Under the Articles, all thirteen states had to approve a change. The Constitution, however, says it will become effective if nine states ratify it. What's up with that? Madison recognizes that these are delicate questions, but reminds his readership that in the history of the Articles of Confederation, never have all thirteen states agreed on anything. The question, he says "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." Something had to give, and constitution-making is always a revolutionary act. Did the Framers cut a few corners? Sure, but desperate times call for desperate measures.
Firstly, Madison notes that the federal government would have the power to regulate intellectual property; that is, copyright, trademarks, and patents. He thinks this is obviously a good idea, and doesn't dwell too long on it. He's right: having each state enforce its own patents and such would be a nightmare. Some system of intellectual property rights must exist to encourage development, so it should probably be a unified federal system.
Next, he examines the power to create a federal district and exercise jurisdiction over it. This power, in a few years' time, would result in the establishment of Washington, D.C. The Constitution doesn't specify where the federal district would go, and the debate over the location of the new capital would get quite heated. Madison and the other authors of the Constitution rightly recognized that having the capital in a state would give that state too much power over the federal government, which was in those days quite weak. What no one at the time considered was the possibility that the capital district would get so populous that it would agitate for its own representation as a state. Despite many proposals in the 200 years since, this problem remains unresolved.The third provisions Madison examines deals with treason, and how to punish it. If treason is against the United States, Madison reasons, the United States must be able to punish it. But limits are important. Under the British system, all sorts of anti-administration activity was classed as treason, and in the rest of Europe it was even more egregious. As he writes, "as new-fangled and artificial treasons have been the great engines by which violent factions ... by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author." This ensures that even if one administration or other wishes to punish its enemies, treason will be unavailable as an accusation except for serious crimes against the nation. This provision likely kept the United States from degenerating into a republic where changes in government are accompanied by bloodshed.
Next, Madison discusses the power to admit new states to the Union. This seems obvious now, but at the time it was unclear whether and how new states were to be formed from the western lands or elsewhere. The Confederation government had taken the lead by erecting new territories in the Old Northwest, but this provision made certain that any state formed there would be admitted and treated the same as the original thirteen. Along the same lines is a fifth power, the power to govern the federal territories that are not yet states. This was not terribly controversial at the time, but would become so in the days leading up to the Civil War. Since then, it has been uncontroversial once more.The sixth power Madison discusses is the so-called Republican Guaranty clause, or the power to ensure that every state has a republican form of government. This made anti-Federalists nervous: what if the federal government decided that their state was insufficiently republican? Would the feds be able to rewrite the state's constitution to its liking? This was troubling since then, as now, no one knew exactly what this clause meant. All the states had different voting rights, different labor rights (i.e., slavery) and so on. Were they all equally republican?
Madison seeks to set the people's minds at ease: the guaranty, he says, "supposes a pre-existing government of the form which is to be guaranteed." As long as the keep up the same degree of a republic as they had in 1788, there can be no complaint from the feds, right? As long as the states have some sort of a republic, as they currently understood the term, there was no problem. Only the introduction of "aristocratic or monarchial innovations" would violate the clause. That's not a terribly exact explanation, and while it came up from time to time, no one ever really figured out what it meant.
Seventh, he discusses the provision that says the debts the United States contracted before the Constitution will still be valid afterward. Basically: we'll still pay our bills if this thing passes. This should've kept bankers from being opposed to the Constitution, anyway.
Eighth, he briefly mentions the amendment process. As much as the Publius authorship group likes the Constitution, they know it's not perfect and that defects may emerge later, as they did under the Articles. If so, and if enough people think it's a problem, it can be fixed. We've done it twenty-eight times since then and, while it's not easy, it's a much better solution than having revolutions all the time like France.
Lastly, Madison talks about the ratification process. Under the Articles, all thirteen states had to approve a change. The Constitution, however, says it will become effective if nine states ratify it. What's up with that? Madison recognizes that these are delicate questions, but reminds his readership that in the history of the Articles of Confederation, never have all thirteen states agreed on anything. The question, he says "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." Something had to give, and constitution-making is always a revolutionary act. Did the Framers cut a few corners? Sure, but desperate times call for desperate measures.
Wednesday, May 07, 2008
The Powers Conferred by the Constitution Further Considered (No. 42)
Hello, faithful readers. Thanks for keeping up with this blog despite my long absences. School is out for good now, and while work keeps me busy, I hope to have more time to blog the Federalist papers in the future. For now, let's dive in to Federalist Paper number 42.
According to Professor Lupu's 1998 article on the subject, Federalist 42 is cited in Supreme Court opinions more often than any other Federalist Paper. I'm not sure if that's still true ten years later, but in any case the Supreme Court loves Federalist 42. So what's all the fuss about? Well, in Federalist 42, Madison discusses the essentials of federalism itself.
To begin, Madison recites a whole mess of powers granted to the federal government:
These powers, Madison says, form "an obvious and essential branch of the federal administration," and are necessary for the United States government to carry out the acts of an independent nation. It's hard to argue with him. As Madison explains, these powers are all necessary for a national government to possess: it must be able to deal with other nations, through treaties, embassies, commerce, and participation in international law, such as it was at the time. These are all things with regard to which the United States must speak with one voice, not thirteen, and so the Constitution delegates them to the federal government.
Madison then considers another group of powers, "those which provide for the harmony and proper intercourse among the States." He lists these, as well:
Here, the powers are federal in nature, though not as indisputably so as in the previous group. It is possible, I imagine, to have a country where bankruptcy laws vary from state to state, and where the federal government has no control over roads or coinage or weights and measures. Possible, indeed, but messy. Imagine having to change your money when you crossed state lines. Or having to calculate how many Delaware miles there were in one Maryland mile. Or driving your car on the left in Illinois, but on the right in neighboring Kentucky. Sure, it's possible, but really, isn't federal management of these areas better for everyone?
This is where aggrandizers of federal power usually say that if federal control is better for these things, why not for everything? Why not speed limits and motorcycle helmet laws? Drinking ages and zoning regulation? Why not a federal criminal code that takes the place of 50 state codes? By now, proponents of federalism and subsidiarity must be on the edge of their seats. The difference, gentle readers, is that these things cause no problems by being various. People can easily adjust to changes of those sorts. You can marry your niece in Pennsylvania, but not in West Virginia; as disturbing as that is, the nation will not collapse as a result. But if each state had its own money, things could spiral downhill rapidly.
Federalist 42 doesn't really have a conclusion, so I'll add my own: What this essay illustrates is that some things have to be federal, some things really ought to be federal, and the rest aren't federal at all. Anti-federalists looked at the long list of federal powers, and saw a growing tyranny. Madison knew that the opposite was true: by specifically naming each thing that falls under federal jurisdiction, the Constitution excludes everything else. The Constitution extended federal power, it is true, but it did so in a self-limiting fashion.
The anti-federalists needn't have worrried; if it's not on the list, there's no way the federal givernment can control it. Simple! Now, where's the clause about low-flow shower heads...
According to Professor Lupu's 1998 article on the subject, Federalist 42 is cited in Supreme Court opinions more often than any other Federalist Paper. I'm not sure if that's still true ten years later, but in any case the Supreme Court loves Federalist 42. So what's all the fuss about? Well, in Federalist 42, Madison discusses the essentials of federalism itself.
To begin, Madison recites a whole mess of powers granted to the federal government:
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.
These powers, Madison says, form "an obvious and essential branch of the federal administration," and are necessary for the United States government to carry out the acts of an independent nation. It's hard to argue with him. As Madison explains, these powers are all necessary for a national government to possess: it must be able to deal with other nations, through treaties, embassies, commerce, and participation in international law, such as it was at the time. These are all things with regard to which the United States must speak with one voice, not thirteen, and so the Constitution delegates them to the federal government.
Madison then considers another group of powers, "those which provide for the harmony and proper intercourse among the States." He lists these, as well:
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 secureties 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.
Here, the powers are federal in nature, though not as indisputably so as in the previous group. It is possible, I imagine, to have a country where bankruptcy laws vary from state to state, and where the federal government has no control over roads or coinage or weights and measures. Possible, indeed, but messy. Imagine having to change your money when you crossed state lines. Or having to calculate how many Delaware miles there were in one Maryland mile. Or driving your car on the left in Illinois, but on the right in neighboring Kentucky. Sure, it's possible, but really, isn't federal management of these areas better for everyone?
This is where aggrandizers of federal power usually say that if federal control is better for these things, why not for everything? Why not speed limits and motorcycle helmet laws? Drinking ages and zoning regulation? Why not a federal criminal code that takes the place of 50 state codes? By now, proponents of federalism and subsidiarity must be on the edge of their seats. The difference, gentle readers, is that these things cause no problems by being various. People can easily adjust to changes of those sorts. You can marry your niece in Pennsylvania, but not in West Virginia; as disturbing as that is, the nation will not collapse as a result. But if each state had its own money, things could spiral downhill rapidly.
Federalist 42 doesn't really have a conclusion, so I'll add my own: What this essay illustrates is that some things have to be federal, some things really ought to be federal, and the rest aren't federal at all. Anti-federalists looked at the long list of federal powers, and saw a growing tyranny. Madison knew that the opposite was true: by specifically naming each thing that falls under federal jurisdiction, the Constitution excludes everything else. The Constitution extended federal power, it is true, but it did so in a self-limiting fashion.
The anti-federalists needn't have worrried; if it's not on the list, there's no way the federal givernment can control it. Simple! Now, where's the clause about low-flow shower heads...
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