The Federalist Papers | Federalist No. 41
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The Federalist Papers | Federalist No. 41


FEDERALIST No. 41. General View of the Powers Conferred by The
Constitution For the Independent Journal. Saturday, January 19, 1788 MADISON
To the People of the State of New York: THE Constitution proposed by the convention
may be considered under two general points of view. The FIRST relates to the sum or quantity of
power which it vests in the government, including the restraints imposed on the States. The SECOND, to the particular structure of
the government, and the distribution of this power among its several branches. Under the FIRST view of the subject, two important
questions arise: 1. Whether any part of the powers transferred
to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous
to the portion of jurisdiction left in the several States? Is the aggregate power of the general government
greater than ought to have been vested in it? This is the FIRST question. It cannot have escaped those who have attended
with candor to the arguments employed against the extensive powers of the government, that
the authors of them have very little considered how far these powers were necessary means
of attaining a necessary end. They have chosen rather to dwell on the inconveniences
which must be unavoidably blended with all political advantages; and on the possible
abuses which must be incident to every power or trust, of which a beneficial use can be
made. This method of handling the subject cannot
impose on the good sense of the people of America. It may display the subtlety of the writer;
it may open a boundless field for rhetoric and declamation; it may inflame the passions
of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people
will at once reflect, that the purest of human blessings must have a portion of alloy in
them; that the choice must always be made, if not of the lesser evil, at least of the
GREATER, not the PERFECT, good; and that in every political institution, a power to advance
the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases
where power is to be conferred, the point first to be decided is, whether such a power
be necessary to the public good; as the next will be, in case of an affirmative decision,
to guard as effectually as possible against a perversion of the power to the public detriment. That we may form a correct judgment on this
subject, it will be proper to review the several powers conferred on the government of the
Union; and that this may be the more conveniently done they may be reduced into different classes
as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign
nations; 3. Maintenance of harmony and proper intercourse
among the States; 4. Certain miscellaneous objects of general utility;
5. Restraint of the States from certain injurious
acts; 6. Provisions for giving due efficacy to all
these powers. The powers falling within the FIRST class
are those of declaring war and granting letters of marque; of providing armies and fleets;
of regulating and calling forth the militia; of levying and borrowing money. Security against foreign danger is one of
the primitive objects of civil society. It is an avowed and essential object of the
American Union. The powers requisite for attaining it must
be effectually confided to the federal councils. Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter
into a proof of the affirmative. The existing Confederation establishes this
power in the most ample form. Is the power of raising armies and equipping
fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defense. But was it necessary to give an INDEFINITE
POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE,
as well as in WAR? The answer to these questions has been too
far anticipated in another place to admit an extensive discussion of them in this place. The answer indeed seems to be so obvious and
conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force
necessary for defense be limited by those who cannot limit the force of offense? If a federal Constitution could chain the
ambition or set bounds to the exertions of all other nations, then indeed might it prudently
chain the discretion of its own government, and set bounds to the exertions for its own
safety. How could a readiness for war in time of peace
be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments
of every hostile nation? The means of security can only be regulated
by the means and the danger of attack. They will, in fact, be ever determined by
these rules, and by no others. It is in vain to oppose constitutional barriers
to the impulse of self-preservation. It is worse than in vain; because it plants
in the Constitution itself necessary usurpations of power, every precedent of which is a germ
of unnecessary and multiplied repetitions. If one nation maintains constantly a disciplined
army, ready for the service of ambition or revenge, it obliges the most pacific nations
who may be within the reach of its enterprises to take corresponding precautions. The fifteenth century was the unhappy epoch
of military establishments in the time of peace. They were introduced by Charles VII. of France. All Europe has followed, or been forced into,
the example. Had the example not been followed by other
nations, all Europe must long ago have worn the chains of a universal monarch. Were every nation except France now to disband
its peace establishments, the same event might follow. The veteran legions of Rome were an overmatch
for the undisciplined valor of all other nations and rendered her the mistress of the world. Not the less true is it, that the liberties
of Rome proved the final victim to her military triumphs; and that the liberties of Europe,
as far as they ever existed, have, with few exceptions, been the price of her military
establishments. A standing force, therefore, is a dangerous,
at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may
be fatal. On any scale it is an object of laudable circumspection
and precaution. A wise nation will combine all these considerations;
and, whilst it does not rashly preclude itself from any resource which may become essential
to its safety, will exert all its prudence in diminishing both the necessity and the
danger of resorting to one which may be inauspicious to its liberties. The clearest marks of this prudence are stamped
on the proposed Constitution. The Union itself, which it cements and secures,
destroys every pretext for a military establishment which could be dangerous. America united, with a handful of troops,
or without a single soldier, exhibits a more forbidding posture to foreign ambition than
America disunited, with a hundred thousand veterans ready for combat. It was remarked, on a former occasion, that
the want of this pretext had saved the liberties of one nation in Europe. Being rendered by her insular situation and
her maritime resources impregnable to the armies of her neighbors, the rulers of Great
Britain have never been able, by real or artificial dangers, to cheat the public into an extensive
peace establishment. The distance of the United States from the
powerful nations of the world gives them the same happy security. A dangerous establishment can never be necessary
or plausible, so long as they continue a united people. But let it never, for a moment, be forgotten
that they are indebted for this advantage to the Union alone. The moment of its dissolution will be the
date of a new order of things. The fears of the weaker, or the ambition of
the stronger States, or Confederacies, will set the same example in the New, as Charles
VII. did in the Old World. The example will be followed here from the
same motives which produced universal imitation there. Instead of deriving from our situation the
precious advantage which Great Britain has derived from hers, the face of America will
be but a copy of that of the continent of Europe. It will present liberty everywhere crushed
between standing armies and perpetual taxes. The fortunes of disunited America will be
even more disastrous than those of Europe. The sources of evil in the latter are confined
to her own limits. No superior powers of another quarter of the
globe intrigue among her rival nations, inflame their mutual animosities, and render them
the instruments of foreign ambition, jealousy, and revenge. In America the miseries springing from her
internal jealousies, contentions, and wars, would form a part only of her lot. A plentiful addition of evils would have their
source in that relation in which Europe stands to this quarter of the earth, and which no
other quarter of the earth bears to Europe. This picture of the consequences of disunion
cannot be too highly colored, or too often exhibited. Every man who loves peace, every man who loves
his country, every man who loves liberty, ought to have it ever before his eyes, that
he may cherish in his heart a due attachment to the Union of America, and be able to set
a due value on the means of preserving it. Next to the effectual establishment of the
Union, the best possible precaution against danger from standing armies is a limitation
of the term for which revenue may be appropriated to their support. This precaution the Constitution has prudently
added. I will not repeat here the observations which
I flatter myself have placed this subject in a just and satisfactory light. But it may not be improper to take notice
of an argument against this part of the Constitution, which has been drawn from the policy and practice
of Great Britain. It is said that the continuance of an army
in that kingdom requires an annual vote of the legislature; whereas the American Constitution
has lengthened this critical period to two years. This is the form in which the comparison is
usually stated to the public: but is it a just form? Is it a fair comparison? Does the British Constitution restrain the
parliamentary discretion to one year? Does the American impose on the Congress appropriations
for two years? On the contrary, it cannot be unknown to the
authors of the fallacy themselves, that the British Constitution fixes no limit whatever
to the discretion of the legislature, and that the American ties down the legislature
to two years, as the longest admissible term. Had the argument from the British example
been truly stated, it would have stood thus: The term for which supplies may be appropriated
to the army establishment, though unlimited by the British Constitution, has nevertheless,
in practice, been limited by parliamentary discretion to a single year. Now, if in Great Britain, where the House
of Commons is elected for seven years; where so great a proportion of the members are elected
by so small a proportion of the people; where the electors are so corrupted by the representatives,
and the representatives so corrupted by the Crown, the representative body can possess
a power to make appropriations to the army for an indefinite term, without desiring,
or without daring, to extend the term beyond a single year, ought not suspicion herself
to blush, in pretending that the representatives of the United States, elected FREELY by the
WHOLE BODY of the people, every SECOND YEAR, cannot be safely intrusted with the discretion
over such appropriations, expressly limited to the short period of TWO YEARS? A bad cause seldom fails to betray itself. Of this truth, the management of the opposition
to the federal government is an unvaried exemplification. But among all the blunders which have been
committed, none is more striking than the attempt to enlist on that side the prudent
jealousy entertained by the people, of standing armies. The attempt has awakened fully the public
attention to that important subject; and has led to investigations which must terminate
in a thorough and universal conviction, not only that the constitution has provided the
most effectual guards against danger from that quarter, but that nothing short of a
Constitution fully adequate to the national defense and the preservation of the Union,
can save America from as many standing armies as it may be split into States or Confederacies,
and from such a progressive augmentation, of these establishments in each, as will render
them as burdensome to the properties and ominous to the liberties of the people, as any establishment
that can become necessary, under a united and efficient government, must be tolerable
to the former and safe to the latter. The palpable necessity of the power to provide
and maintain a navy has protected that part of the Constitution against a spirit of censure,
which has spared few other parts. It must, indeed, be numbered among the greatest
blessings of America, that as her Union will be the only source of her maritime strength,
so this will be a principal source of her security against danger from abroad. In this respect our situation bears another
likeness to the insular advantage of Great Britain. The batteries most capable of repelling foreign
enterprises on our safety, are happily such as can never be turned by a perfidious government
against our liberties. The inhabitants of the Atlantic frontier are
all of them deeply interested in this provision for naval protection, and if they have hitherto
been suffered to sleep quietly in their beds; if their property has remained safe against
the predatory spirit of licentious adventurers; if their maritime towns have not yet been
compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions
of daring and sudden invaders, these instances of good fortune are not to be ascribed to
the capacity of the existing government for the protection of those from whom it claims
allegiance, but to causes that are fugitive and fallacious. If we except perhaps Virginia and Maryland,
which are peculiarly vulnerable on their eastern frontiers, no part of the Union ought to feel
more anxiety on this subject than New York. Her seacoast is extensive. A very important district of the State is
an island. The State itself is penetrated by a large
navigable river for more than fifty leagues. The great emporium of its commerce, the great
reservoir of its wealth, lies every moment at the mercy of events, and may almost be
regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even
with the rapacious demands of pirates and barbarians. Should a war be the result of the precarious
situation of European affairs, and all the unruly passions attending it be let loose
on the ocean, our escape from insults and depredations, not only on that element, but
every part of the other bordering on it, will be truly miraculous. In the present condition of America, the States
more immediately exposed to these calamities have nothing to hope from the phantom of a
general government which now exists; and if their single resources were equal to the task
of fortifying themselves against the danger, the object to be protected would be almost
consumed by the means of protecting them. The power of regulating and calling forth
the militia has been already sufficiently vindicated and explained. The power of levying and borrowing money,
being the sinew of that which is to be exerted in the national defense, is properly thrown
into the same class with it. This power, also, has been examined already
with much attention, and has, I trust, been clearly shown to be necessary, both in the
extent and form given to it by the Constitution. I will address one additional reflection only
to those who contend that the power ought to have been restrained to external—taxation
by which they mean, taxes on articles imported from other countries. It cannot be doubted that this will always
be a valuable source of revenue; that for a considerable time it must be a principal
source; that at this moment it is an essential one. But we may form very mistaken ideas on this
subject, if we do not call to mind in our calculations, that the extent of revenue drawn
from foreign commerce must vary with the variations, both in the extent and the kind of imports;
and that these variations do not correspond with the progress of population, which must
be the general measure of the public wants. As long as agriculture continues the sole
field of labor, the importation of manufactures must increase as the consumers multiply. As soon as domestic manufactures are begun
by the hands not called for by agriculture, the imported manufactures will decrease as
the numbers of people increase. In a more remote stage, the imports may consist
in a considerable part of raw materials, which will be wrought into articles for exportation,
and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging
duties. A system of government, meant for duration,
ought to contemplate these revolutions, and be able to accommodate itself to them. Some, who have not denied the necessity of
the power of taxation, have grounded a very fierce attack against the Constitution, on
the language in which it is defined. It has been urged and echoed, that the power
“to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide
for the common defense and general welfare of the United States,” amounts to an unlimited
commission to exercise every power which may be alleged to be necessary for the common
defense or general welfare. No stronger proof could be given of the distress
under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of
the powers of the Congress been found in the Constitution, than the general expressions
just cited, the authors of the objection might have had some color for it; though it would
have been difficult to find a reason for so awkward a form of describing an authority
to legislate in all possible cases. A power to destroy the freedom of the press,
the trial by jury, or even to regulate the course of descents, or the forms of conveyances,
must be very singularly expressed by the terms “to raise money for the general welfare.” But what color can the objection have, when
a specification of the objects alluded to by these general terms immediately follows,
and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument
ought to be so expounded, as to give meaning to every part which will bear it, shall one
part of the same sentence be excluded altogether from a share in the meaning; and shall the
more doubtful and indefinite terms be retained in their full extent, and the clear and precise
expressions be denied any signification whatsoever? For what purpose could the enumeration of
particular powers be inserted, if these and all others were meant to be included in the
preceding general power? Nothing is more natural nor common than first
to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars
which neither explain nor qualify the general meaning, and can have no other effect than
to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of
charging either on the authors of the objection or on the authors of the Constitution, we
must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary,
as it appears that the language used by the convention is a copy from the articles of
Confederation. The objects of the Union among the States,
as described in article third, are “their common defense, security of their liberties,
and mutual and general welfare.” The terms of article eighth are still more
identical: “All charges of war and all other expenses that shall be incurred for the common
defense or general welfare, and allowed by the United States in Congress, shall be defrayed
out of a common treasury,” etc. A similar language again occurs in article
ninth. Construe either of these articles by the rules
which would justify the construction put on the new Constitution, and they vest in the
existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly,
if, attaching themselves to these general expressions, and disregarding the specifications
which ascertain and limit their import, they had exercised an unlimited power of providing
for the common defense and general welfare? I appeal to the objectors themselves, whether
they would in that case have employed the same reasoning in justification of Congress
as they now make use of against the convention. How difficult it is for error to escape its
own condemnation! PUBLIUS

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