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...
1 comments:
Wow...still blogging the Federalist. Good job, I have some catching up to do. I just read Bernard Bailyn's To Begin the World Anew. He has a pretty good chapter in it on the debates around the Constitution via the Federalist Papers. If you've never read him, you'll probably like him...writes about the great men of history and their accomplishments.
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