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.