prompt:
Chapter: On the Powers of the Convention to Form a Mixed Government Examined and
Sustained For the New York Packet. Friday, January 18, 1788.

MADISON

To the People of the State of New York:

THE SECOND point to be examined is, whether the convention were
authorized to frame and propose this mixed Constitution.

The powers of the convention ought, in strictness, to be determined
by an inspection of the commissions given to the members by their
respective constituents. As all of these, however, had reference, either
to the recommendation from the meeting at Annapolis, in September, 1786,
or to that from Congress, in February, 1787, it will be sufficient to
recur to these particular acts.

The act from Annapolis recommends the "appointment of commissioners to
take into consideration the situation of the United States; to devise
SUCH FURTHER PROVISIONS as shall appear to them necessary to render the
Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE
UNION; and to report such an act for that purpose, to the United
States in Congress assembled, as when agreed to by them, and afterwards
confirmed by the legislature of every State, will effectually provide
for the same."

The recommendatory act of Congress is in the words following: "WHEREAS,
There is provision in the articles of Confederation and perpetual Union,
for making alterations therein, by the assent of a Congress of the
United States, and of the legislatures of the several States; and
whereas experience hath evinced, that there are defects in the present
Confederation; as a mean to remedy which, several of the States, and
PARTICULARLY THE STATE OF NEW YORK, by express instructions to their
delegates in Congress, have suggested a convention for the purposes
expressed in the following resolution; and such convention appearing
to be the most probable mean of establishing in these States A FIRM
NATIONAL GOVERNMENT:

"Resolved, That in the opinion of Congress it is expedient, that on the
second Monday of May next a convention of delegates, who shall have been
appointed by the several States, be held at Philadelphia, for the sole
and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and
reporting to Congress and the several legislatures such ALTERATIONS AND
PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed
by the States, render the federal Constitution ADEQUATE TO THE
EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION."

From these two acts, it appears, 1st, that the object of the convention
was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that
this government was to be such as would be ADEQUATE TO THE EXIGENCIES
OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes
were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF
CONFEDERATION, as it is expressed in the act of Congress, or by SUCH
FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the
recommendatory act from Annapolis; 4th, that the alterations and
provisions were to be reported to Congress, and to the States, in order
to be agreed to by the former and confirmed by the latter.

From a comparison and fair construction of these several modes of
expression, is to be deduced the authority under which the convention
acted. They were to frame a NATIONAL GOVERNMENT, adequate to the
EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles
of Confederation into such form as to accomplish these purposes.

There are two rules of construction, dictated by plain reason, as
well as founded on legal axioms. The one is, that every part of the
expression ought, if possible, to be allowed some meaning, and be made
to conspire to some common end. The other is, that where the several
parts cannot be made to coincide, the less important should give way
to the more important part; the means should be sacrificed to the end,
rather than the end to the means.

Suppose, then, that the expressions defining the authority of the
convention were irreconcilably at variance with each other; that a
NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment
of the convention, be affected by ALTERATIONS and PROVISIONS in the
ARTICLES OF CONFEDERATION; which part of the definition ought to have
been embraced, and which rejected? Which was the more important, which
the less important part? Which the end; which the means? Let the most
scrupulous expositors of delegated powers; let the most inveterate
objectors against those exercised by the convention, answer these
questions. Let them declare, whether it was of most importance to the
happiness of the people of America, that the articles of Confederation
should be disregarded, and an adequate government be provided, and the
Union preserved; or that an adequate government should be omitted, and
the articles of Confederation preserved. Let them declare, whether the
preservation of these articles was the end, for securing which a reform
of the government was to be introduced as the means; or whether the
establishment of a government, adequate to the national happiness, was
the end at which these articles themselves originally aimed, and to
which they ought, as insufficient means, to have been sacrificed.

But is it necessary to suppose that these expressions are absolutely
irreconcilable to each other; that no ALTERATIONS or PROVISIONS in the
articles of the confederation could possibly mould them into a national
and adequate government; into such a government as has been proposed by
the convention?

No stress, it is presumed, will, in this case, be laid on the TITLE;
a change of that could never be deemed an exercise of ungranted power.
ALTERATIONS in the body of the instrument are expressly authorized. NEW
PROVISIONS therein are also expressly authorized. Here then is a power
to change the title; to insert new articles; to alter old ones. Must it
of necessity be admitted that this power is infringed, so long as a part
of the old articles remain? Those who maintain the affirmative ought at
least to mark the boundary between authorized and usurped innovations;
between that degree of change which lies within the compass of
ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a
TRANSMUTATION of the government. Will it be said that the alterations
ought not to have touched the substance of the Confederation? The States
would never have appointed a convention with so much solemnity, nor
described its objects with so much latitude, if some SUBSTANTIAL reform
had not been in contemplation. Will it be said that the FUNDAMENTAL
PRINCIPLES of the Confederation were not within the purview of the
convention, and ought not to have been varied? I ask, What are
these principles? Do they require that, in the establishment of the
Constitution, the States should be regarded as distinct and independent
sovereigns? They are so regarded by the Constitution proposed. Do
they require that the members of the government should derive their
appointment from the legislatures, not from the people of the
States? One branch of the new government is to be appointed by these
legislatures; and under the Confederation, the delegates to Congress
MAY ALL be appointed immediately by the people, and in two States(1) are
actually so appointed. Do they require that the powers of the government
should act on the States, and not immediately on individuals? In some
instances, as has been shown, the powers of the new government will act
on the States in their collective characters. In some instances, also,
those of the existing government act immediately on individuals. In
cases of capture; of piracy; of the post office; of coins, weights, and
measures; of trade with the Indians; of claims under grants of land
by different States; and, above all, in the case of trials by
courts-marshal in the army and navy, by which death may be inflicted
without the intervention of a jury, or even of a civil magistrate; in
all these cases the powers of the Confederation operate immediately on
the persons and interests of individual citizens. Do these fundamental
principles require, particularly, that no tax should be levied without
the intermediate agency of the States? The Confederation itself
authorizes a direct tax, to a certain extent, on the post office. The
power of coinage has been so construed by Congress as to levy a tribute
immediately from that source also. But pretermitting these instances,
was it not an acknowledged object of the convention and the universal
expectation of the people, that the regulation of trade should be
submitted to the general government in such a form as would render it
an immediate source of general revenue? Had not Congress repeatedly
recommended this measure as not inconsistent with the fundamental
principles of the Confederation? Had not every State but one; had
not New York herself, so far complied with the plan of Congress as to
recognize the PRINCIPLE of the innovation? Do these principles, in fine,
require that the powers of the general government should be limited,
and that, beyond this limit, the States should be left in possession
of their sovereignty and independence? We have seen that in the new
government, as in the old, the general powers are limited; and that the
States, in all unenumerated cases, are left in the enjoyment of their
sovereign and independent jurisdiction.

The truth is, that the great principles of the Constitution proposed
by the convention may be considered less as absolutely new, than as
the expansion of principles which are found in the articles of
Confederation. The misfortune under the latter system has been, that
these principles are so feeble and confined as to justify all the
charges of inefficiency which have been urged against it, and to require
a degree of enlargement which gives to the new system the aspect of an
entire transformation of the old.

In one particular it is admitted that the convention have departed from
the tenor of their commission. Instead of reporting a plan requiring the
confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported
a plan which is to be confirmed by the PEOPLE, and may be carried into
effect by NINE STATES ONLY. It is worthy of remark that this objection,
though the most plausible, has been the least urged in the publications
which have swarmed against the convention. The forbearance can only have
proceeded from an irresistible conviction of the absurdity of subjecting
the fate of twelve States to the perverseness or corruption of a
thirteenth; from the example of inflexible opposition given by a
MAJORITY of one sixtieth of the people of America to a measure approved
and called for by the voice of twelve States, comprising fifty-nine
sixtieths of the people an example still fresh in the memory and
indignation of every citizen who has felt for the wounded honor and
prosperity of his country. As this objection, therefore, has been in a
manner waived by those who have criticised the powers of the convention,
I dismiss it without further observation.

The THIRD point to be inquired into is, how far considerations of duty
arising out of the case itself could have supplied any defect of regular
authority.

In the preceding inquiries the powers of the convention have been
analyzed and tried with the same rigor, and by the same rules, as
if they had been real and final powers for the establishment of a
Constitution for the United States. We have seen in what manner they
have borne the trial even on that supposition. It is time now to
recollect that the powers were merely advisory and recommendatory; that
they were so meant by the States, and so understood by the convention;
and that the latter have accordingly planned and proposed a Constitution
which is to be of no more consequence than the paper on which it is
written, unless it be stamped with the approbation of those to whom
it is addressed. This reflection places the subject in a point of view
altogether different, and will enable us to judge with propriety of the
course taken by the convention.

Let us view the ground on which the convention stood. It may be
collected from their proceedings, that they were deeply and unanimously
impressed with the crisis, which had led their country almost with one
voice to make so singular and solemn an experiment for correcting the
errors of a system by which this crisis had been produced; that they
were no less deeply and unanimously convinced that such a reform as they
have proposed was absolutely necessary to effect the purposes of
their appointment. It could not be unknown to them that the hopes
and expectations of the great body of citizens, throughout this great
empire, were turned with the keenest anxiety to the event of their
deliberations. They had every reason to believe that the contrary
sentiments agitated the minds and bosoms of every external and internal
foe to the liberty and prosperity of the United States. They had seen in
the origin and progress of the experiment, the alacrity with which
the PROPOSITION, made by a single State (Virginia), towards a partial
amendment of the Confederation, had been attended to and promoted. They
had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW
States, convened at Annapolis, of recommending a great and critical
object, wholly foreign to their commission, not only justified by the
public opinion, but actually carried into effect by twelve out of the
thirteen States. They had seen, in a variety of instances, assumptions
by Congress, not only of recommendatory, but of operative, powers,
warranted, in the public estimation, by occasions and objects infinitely
less urgent than those by which their conduct was to be governed.
They must have reflected, that in all great changes of established
governments, forms ought to give way to substance; that a rigid
adherence in such cases to the former, would render nominal and nugatory
the transcendent and precious right of the people to "abolish or alter
their governments as to them shall seem most likely to effect their
safety and happiness,"(2) since it is impossible for the people
spontaneously and universally to move in concert towards their object;
and it is therefore essential that such changes be instituted by some
INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and
respectable citizen or number of citizens. They must have recollected
that it was by this irregular and assumed privilege of proposing to the
people plans for their safety and happiness, that the States were first
united against the danger with which they were threatened by their
ancient government; that committees and congresses were formed for
concentrating their efforts and defending their rights; and that
CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the
constitutions under which they are now governed; nor could it have been
forgotten that no little ill-timed scruples, no zeal for adhering
to ordinary forms, were anywhere seen, except in those who wished
to indulge, under these masks, their secret enmity to the substance
contended for. They must have borne in mind, that as the plan to be
framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the
disapprobation of this supreme authority would destroy it forever; its
approbation blot out antecedent errors and irregularities. It might
even have occurred to them, that where a disposition to cavil prevailed,
their neglect to execute the degree of power vested in them, and still
more their recommendation of any measure whatever, not warranted
by their commission, would not less excite animadversion, than a
recommendation at once of a measure fully commensurate to the national
exigencies.

Had the convention, under all these impressions, and in the midst of all
these considerations, instead of exercising a manly confidence in their
country, by whose confidence they had been so peculiarly distinguished,
and of pointing out a system capable, in their judgment, of securing
its happiness, taken the cold and sullen resolution of disappointing
its ardent hopes, of sacrificing substance to forms, of committing the
dearest interests of their country to the uncertainties of delay and
the hazard of events, let me ask the man who can raise his mind to one
elevated conception, who can awaken in his bosom one patriotic emotion,
what judgment ought to have been pronounced by the impartial world, by
the friends of mankind, by every virtuous citizen, on the conduct and
character of this assembly? Or if there be a man whose propensity to
condemn is susceptible of no control, let me then ask what sentence he
has in reserve for the twelve States who USURPED THE POWER of
sending deputies to the convention, a body utterly unknown to their
constitutions; for Congress, who recommended the appointment of this
body, equally unknown to the Confederation; and for the State of New
York, in particular, which first urged and then complied with this
unauthorized interposition?

But that the objectors may be disarmed of every pretext, it shall be
granted for a moment that the convention were neither authorized
by their commission, nor justified by circumstances in proposing a
Constitution for their country: does it follow that the Constitution
ought, for that reason alone, to be rejected? If, according to the noble
precept, it be lawful to accept good advice even from an enemy, shall we
set the ignoble example of refusing such advice even when it is offered
by our friends? The prudent inquiry, in all cases, ought surely to be,
not so much FROM WHOM the advice comes, as whether the advice be GOOD.

The sum of what has been here advanced and proved is, that the charge
against the convention of exceeding their powers, except in one instance
little urged by the objectors, has no foundation to support it; that
if they had exceeded their powers, they were not only warranted,
but required, as the confidential servants of their country, by the
circumstances in which they were placed, to exercise the liberty which
they assume; and that finally, if they had violated both their
powers and their obligations, in proposing a Constitution, this ought
nevertheless to be embraced, if it be calculated to accomplish the views
and happiness of the people of America. How far this character is due to
the Constitution, is the subject under investigation.

PUBLIUS

1. Connecticut and Rhode Island.

2. Declaration of Independence.

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Madison responds to the claim that the constitutional convention was authorized to frame and propose an entirely new form of government. Anti-Federalists charged that the convention had been formed to merely amend the Articles, not throw them out entirely in favor of the proposed constitution. Madison argues that Congress had clearly authorized the convention to form a "a national and adequate government." Although it had only been explicitly instructed to accomplish this through "alterations and provisions in the articles of confederation," Madison argues that "alterations and provisions" alone would not be sufficient to achieve a "national and adequate government." Therefore, the convention rightly decided that it was more important to create the proper form of government than to limit itself to merely amending the Articles. Madison argues further than the "great principles of the constitution proposed by the convention" are really just "the expansion of principles which are found in the articles of confederation." The problem with the Articles is that the principles were too "feeble and confined." All the Constitution does is empower the government to govern effectively on these principles. Finally, Madison points to the fact that the Articles themselves were formed by a convention that was not explicitly authorized to do so. What matters ultimately, according to Madison, is whether the plans offered are good advice. The proposed constitution ought to be judged on its merits, not on the mere technicality of whether the convention was authorized to propose it.


prompt:
Chapter: 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

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Madison defends the powers granted to the national government in the proposed constitution. He structures his argument into two broad categories: the sum of power vested in government and the particular structure of the government. In this paper, he focuses on the first category and asks whether the "general" or national government has been granted too much power. He argues that it has not. In particular, Madison defends in detail the powers granted to Congress to declare war, grant letters of marque, provide armies and fleets, regulate the militia, raise taxes and borrow money. Madison bases his argument on the principle that all forms of government are imperfect: "in every political institution, a power to advance the pubic happiness, involves a discretion which may be misapplied and abused." That is, governments must be given power in order to govern. However, by giving governments power, the people run the risk of that power being abused by government. Madison illustrates this principle with reference to standing armies. He admits that they are dangerous to liberty, but nevertheless necessary to defend against foreign aggression. If Congress cannot raise armies in times of crisis, then Americans will fall prey to foreign invaders or internal disruptions. It is better to endure the risk of having a standing army than to be totally defenseless against hostile forces. Madison furthermore contends that the power to raise armies and revenue cannot be limited because future threats and needs cannot be predicted. However, he reminds his readers that Congressional authority only extends to certain, enumerated powers.


prompt:
Chapter: The Powers Conferred by the Constitution Further Considered

From the New York Packet. Tuesday, January 22, 1788.

MADISON

To the People of the State of New York:

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.

This class of powers forms an obvious and essential branch of the
federal administration. If we are to be one nation in any respect, it
clearly ought to be in respect to other nations.

The powers to make treaties and to send and receive ambassadors, speak
their own propriety. Both of them are comprised in the articles
of Confederation, with this difference only, that the former is
disembarrassed, by the plan of the convention, of an exception, under
which treaties might be substantially frustrated by regulations of
the States; and that a power of appointing and receiving "other public
ministers and consuls," is expressly and very properly added to the
former provision concerning ambassadors. The term ambassador, if taken
strictly, as seems to be required by the second of the articles of
Confederation, comprehends the highest grade only of public ministers,
and excludes the grades which the United States will be most likely to
prefer, where foreign embassies may be necessary. And under no latitude
of construction will the term comprehend consuls. Yet it has been found
expedient, and has been the practice of Congress, to employ the inferior
grades of public ministers, and to send and receive consuls.

It is true, that where treaties of commerce stipulate for the mutual
appointment of consuls, whose functions are connected with commerce,
the admission of foreign consuls may fall within the power of making
commercial treaties; and that where no such treaties exist, the mission
of American consuls into foreign countries may PERHAPS be covered under
the authority, given by the ninth article of the Confederation, to
appoint all such civil officers as may be necessary for managing the
general affairs of the United States. But the admission of consuls into
the United States, where no previous treaty has stipulated it, seems to
have been nowhere provided for. A supply of the omission is one of the
lesser instances in which the convention have improved on the model
before them. But the most minute provisions become important when they
tend to obviate the necessity or the pretext for gradual and unobserved
usurpations of power. A list of the cases in which Congress have been
betrayed, or forced by the defects of the Confederation, into violations
of their chartered authorities, would not a little surprise those who
have paid no attention to the subject; and would be no inconsiderable
argument in favor of the new Constitution, which seems to have provided
no less studiously for the lesser, than the more obvious and striking
defects of the old.

The power to define and punish piracies and felonies committed on the
high seas, and offenses against the law of nations, belongs with equal
propriety to the general government, and is a still greater improvement
on the articles of Confederation. These articles contain no provision
for the case of offenses against the law of nations; and consequently
leave it in the power of any indiscreet member to embroil the
Confederacy with foreign nations. The provision of the federal articles
on the subject of piracies and felonies extends no further than to the
establishment of courts for the trial of these offenses. The definition
of piracies might, perhaps, without inconveniency, be left to the law
of nations; though a legislative definition of them is found in most
municipal codes. A definition of felonies on the high seas is evidently
requisite. Felony is a term of loose signification, even in the common
law of England; and of various import in the statute law of that
kingdom. But neither the common nor the statute law of that, or of any
other nation, ought to be a standard for the proceedings of this, unless
previously made its own by legislative adoption. The meaning of the
term, as defined in the codes of the several States, would be as
impracticable as the former would be a dishonorable and illegitimate
guide. It is not precisely the same in any two of the States; and
varies in each with every revision of its criminal laws. For the sake of
certainty and uniformity, therefore, the power of defining felonies in
this case was in every respect necessary and proper.

The regulation of foreign commerce, having fallen within several views
which have been taken of this subject, has been too fully discussed
to need additional proofs here of its being properly submitted to the
federal administration.

It were doubtless to be wished, that the power of prohibiting the
importation of slaves had not been postponed until the year 1808, or
rather that it had been suffered to have immediate operation. But it
is not difficult to account, either for this restriction on the general
government, or for the manner in which the whole clause is expressed.
It ought to be considered as a great point gained in favor of humanity,
that a period of twenty years may terminate forever, within these
States, a traffic which has so long and so loudly upbraided the
barbarism of modern policy; that within that period, it will receive
a considerable discouragement from the federal government, and may be
totally abolished, by a concurrence of the few States which continue the
unnatural traffic, in the prohibitory example which has been given by
so great a majority of the Union. Happy would it be for the unfortunate
Africans, if an equal prospect lay before them of being redeemed from
the oppressions of their European brethren!

Attempts have been made to pervert this clause into an objection
against the Constitution, by representing it on one side as a criminal
toleration of an illicit practice, and on another as calculated to
prevent voluntary and beneficial emigrations from Europe to America. I
mention these misconstructions, not with a view to give them an answer,
for they deserve none, but as specimens of the manner and spirit in
which some have thought fit to conduct their opposition to the proposed
government.

The powers included in the THIRD class are those which provide for the
harmony and proper intercourse among the States.

Under this head might be included the particular restraints imposed
on the authority of the States, and certain powers of the judicial
department; but the former are reserved for a distinct class, and the
latter will be particularly examined when we arrive at the structure
and organization of the government. I shall confine myself to a
cursory review of the remaining powers comprehended under this third
description, to wit: 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 securities 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.

The defect of power in the existing Confederacy to regulate the commerce
between its several members, is in the number of those which have been
clearly pointed out by experience. To the proofs and remarks which
former papers have brought into view on this subject, it may be added
that without this supplemental provision, the great and essential
power of regulating foreign commerce would have been incomplete and
ineffectual. A very material object of this power was the relief of the
States which import and export through other States, from the improper
contributions levied on them by the latter. Were these at liberty to
regulate the trade between State and State, it must be foreseen that
ways would be found out to load the articles of import and export,
during the passage through their jurisdiction, with duties which would
fall on the makers of the latter and the consumers of the former. We may
be assured by past experience, that such a practice would be introduced
by future contrivances; and both by that and a common knowledge of human
affairs, that it would nourish unceasing animosities, and not improbably
terminate in serious interruptions of the public tranquillity. To
those who do not view the question through the medium of passion or of
interest, the desire of the commercial States to collect, in any form,
an indirect revenue from their uncommercial neighbors, must appear not
less impolitic than it is unfair; since it would stimulate the injured
party, by resentment as well as interest, to resort to less convenient
channels for their foreign trade. But the mild voice of reason, pleading
the cause of an enlarged and permanent interest, is but too often
drowned, before public bodies as well as individuals, by the clamors of
an impatient avidity for immediate and immoderate gain.

The necessity of a superintending authority over the reciprocal trade of
confederated States, has been illustrated by other examples as well as
our own. In Switzerland, where the Union is so very slight, each canton
is obliged to allow to merchandises a passage through its jurisdiction
into other cantons, without an augmentation of the tolls. In Germany it
is a law of the empire, that the princes and states shall not lay tolls
or customs on bridges, rivers, or passages, without the consent of
the emperor and the diet; though it appears from a quotation in an
antecedent paper, that the practice in this, as in many other instances
in that confederacy, has not followed the law, and has produced there
the mischiefs which have been foreseen here. Among the restraints
imposed by the Union of the Netherlands on its members, one is, that
they shall not establish imposts disadvantageous to their neighbors,
without the general permission.

The regulation of commerce with the Indian tribes is very properly
unfettered from two limitations in the articles of Confederation, which
render the provision obscure and contradictory. The power is there
restrained to Indians, not members of any of the States, and is not to
violate or infringe the legislative right of any State within its own
limits. What description of Indians are to be deemed members of a State,
is not yet settled, and has been a question of frequent perplexity and
contention in the federal councils. And how the trade with Indians,
though not members of a State, yet residing within its legislative
jurisdiction, can be regulated by an external authority, without so
far intruding on the internal rights of legislation, is absolutely
incomprehensible. This is not the only case in which the articles
of Confederation have inconsiderately endeavored to accomplish
impossibilities; to reconcile a partial sovereignty in the Union, with
complete sovereignty in the States; to subvert a mathematical axiom, by
taking away a part, and letting the whole remain.

All that need be remarked on the power to coin money, regulate the value
thereof, and of foreign coin, is, that by providing for this last case,
the Constitution has supplied a material omission in the articles of
Confederation. The authority of the existing Congress is restrained to
the regulation of coin STRUCK by their own authority, or that of the
respective States. It must be seen at once that the proposed uniformity
in the VALUE of the current coin might be destroyed by subjecting that
of foreign coin to the different regulations of the different States.

The punishment of counterfeiting the public securities, as well as
the current coin, is submitted of course to that authority which is to
secure the value of both.

The regulation of weights and measures is transferred from the articles
of Confederation, and is founded on like considerations with the
preceding power of regulating coin.

The dissimilarity in the rules of naturalization has long been remarked
as a fault in our system, and as laying a foundation for intricate and
delicate questions. In the fourth article of the Confederation, it is
declared "that the FREE INHABITANTS of each of these States, paupers,
vagabonds, and fugitives from justice, excepted, shall be entitled to
all privileges and immunities of FREE CITIZENS in the several States;
and THE PEOPLE of each State shall, in every other, enjoy all the
privileges of trade and commerce," etc. There is a confusion of language
here, which is remarkable. Why the terms FREE INHABITANTS are used
in one part of the article, FREE CITIZENS in another, and PEOPLE
in another; or what was meant by superadding to "all privileges
and immunities of free citizens," "all the privileges of trade and
commerce," cannot easily be determined. It seems to be a construction
scarcely avoidable, however, that those who come under the denomination
of FREE INHABITANTS of a State, although not citizens of such State, are
entitled, in every other State, to all the privileges of FREE CITIZENS
of the latter; that is, to greater privileges than they may be entitled
to in their own State: so that it may be in the power of a particular
State, or rather every State is laid under a necessity, not only to
confer the rights of citizenship in other States upon any whom it may
admit to such rights within itself, but upon any whom it may allow to
become inhabitants within its jurisdiction. But were an exposition of
the term "inhabitants" to be admitted which would confine the stipulated
privileges to citizens alone, the difficulty is diminished only, not
removed. The very improper power would still be retained by each State,
of naturalizing aliens in every other State. In one State, residence
for a short term confirms all the rights of citizenship: in another,
qualifications of greater importance are required. An alien, therefore,
legally incapacitated for certain rights in the latter, may, by previous
residence only in the former, elude his incapacity; and thus the law of
one State be preposterously rendered paramount to the law of another,
within the jurisdiction of the other. We owe it to mere casualty, that
very serious embarrassments on this subject have been hitherto escaped.
By the laws of several States, certain descriptions of aliens, who had
rendered themselves obnoxious, were laid under interdicts inconsistent
not only with the rights of citizenship but with the privilege of
residence. What would have been the consequence, if such persons, by
residence or otherwise, had acquired the character of citizens under the
laws of another State, and then asserted their rights as such, both to
residence and citizenship, within the State proscribing them? Whatever
the legal consequences might have been, other consequences would
probably have resulted, of too serious a nature not to be provided
against. The new Constitution has accordingly, with great propriety,
made provision against them, and all others proceeding from the defect
of the Confederation on this head, by authorizing the general government
to establish a uniform rule of naturalization throughout the United
States.

The power of establishing uniform laws of bankruptcy is so intimately
connected with the regulation of commerce, and will prevent so many
frauds where the parties or their property may lie or be removed into
different States, that the expediency of it seems not likely to be drawn
into question.

The power of prescribing by general laws, 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, is an evident and
valuable improvement on the clause relating to this subject in the
articles of Confederation. The meaning of the latter is extremely
indeterminate, and can be of little importance under any interpretation
which it will bear. The power here established may be rendered a very
convenient instrument of justice, and be particularly beneficial on the
borders of contiguous States, where the effects liable to justice may be
suddenly and secretly translated, in any stage of the process, within a
foreign jurisdiction.

The power of establishing post roads must, in every view, be a harmless
power, and may, perhaps, by judicious management, become productive
of great public conveniency. Nothing which tends to facilitate the
intercourse between the States can be deemed unworthy of the public
care.

PUBLIUS

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Madison defends two more classes of powers afforded to the general government: the regulation of intercourse with foreign nations and the regulation of intercourse among the states. Madison argues that the national government must be able to conduct diplomacy and act independently on the international stage just as all other nations do. It must be able to send and receive ambassadors, make binding treaties, and punish piracy. Madison also discusses the provision in the Constitution allowing for the importation of slaves until 1808, after which Congress may decide to ban importation. It is very clear that Madison strongly opposes slavery as an inhumane and barbaric practice. However, he argues that while it would have been better to abolish the trade immediately, it is nevertheless better to place some sort of time limit on the trade than to leave it completely unfettered forever. Madison goes into considerable detail in describing and defending the many specific powers granted to the general government to manage relations between the states. Perhaps the most important is the authority of the national government to regulate interstate commerce. Madison argues that if the national government is not authorized to perform this role, tensions and "serious interruptions of the public tranquility" will result from states imposing various kinds of taxes and restrictions on goods coming from other states.


prompt:
Chapter: The Same Subject Continued (The Powers Conferred by the Constitution
Further Considered)

For the Independent Journal. Wednesday, January 23, 1788

MADISON

To the People of the State of New York:

THE FOURTH class comprises the following miscellaneous powers:

1. A power "to promote the progress of science and useful arts, by
securing, for a limited time, to authors and inventors, the exclusive
right to their respective writings and discoveries."

The utility of this power will scarcely be questioned. The copyright of
authors has been solemnly adjudged, in Great Britain, to be a right of
common law. The right to useful inventions seems with equal reason to
belong to the inventors. The public good fully coincides in both cases
with the claims of individuals. The States cannot separately make
effectual provisions for either of the cases, and most of them have
anticipated the decision of this point, by laws passed at the instance
of Congress.

2. "To exercise exclusive legislation, in all cases whatsoever, over
such district (not exceeding ten miles square) as may, by cession of
particular States and the acceptance of Congress, become the seat of the
government of the United States; and to exercise like authority over
all places purchased by the consent of the legislatures of the States in
which the same shall be, for the erection of forts, magazines, arsenals,
dockyards, and other needful buildings."

The indispensable necessity of complete authority at the seat of
government, carries its own evidence with it. It is a power exercised by
every legislature of the Union, I might say of the world, by virtue of
its general supremacy. Without it, not only the public authority
might be insulted and its proceedings interrupted with impunity; but
a dependence of the members of the general government on the State
comprehending the seat of the government, for protection in the exercise
of their duty, might bring on the national councils an imputation of awe
or influence, equally dishonorable to the government and dissatisfactory
to the other members of the Confederacy. This consideration has the
more weight, as the gradual accumulation of public improvements at the
stationary residence of the government would be both too great a public
pledge to be left in the hands of a single State, and would create
so many obstacles to a removal of the government, as still further to
abridge its necessary independence. The extent of this federal district
is sufficiently circumscribed to satisfy every jealousy of an opposite
nature. And as it is to be appropriated to this use with the consent of
the State ceding it; as the State will no doubt provide in the compact
for the rights and the consent of the citizens inhabiting it; as the
inhabitants will find sufficient inducements of interest to become
willing parties to the cession; as they will have had their voice in the
election of the government which is to exercise authority over them;
as a municipal legislature for local purposes, derived from their own
suffrages, will of course be allowed them; and as the authority of the
legislature of the State, and of the inhabitants of the ceded part of
it, to concur in the cession, will be derived from the whole people
of the State in their adoption of the Constitution, every imaginable
objection seems to be obviated.

The necessity of a like authority over forts, magazines, etc.,
established by the general government, is not less evident. The public
money expended on such places, and the public property deposited in
them, requires that they should be exempt from the authority of the
particular State. Nor would it be proper for the places on which the
security of the entire Union may depend, to be in any degree dependent
on a particular member of it. All objections and scruples are here also
obviated, by requiring the concurrence of the States concerned, in every
such establishment.

3. "To declare the punishment of treason, but no attainder of treason
shall work corruption of blood, or forfeiture, except during the life of
the person attained."

As treason may be committed against the United States, the authority of
the United States ought to be enabled to punish it. But as new-fangled
and artificial treasons have been the great engines by which violent
factions, the natural offspring of free government, have usually wreaked
their alternate malignity on each other, the convention have, with great
judgment, opposed a barrier to this peculiar danger, 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.

4. "To admit new States into the Union; but no new State shall be formed
or erected within the jurisdiction of any other State; nor any State
be formed by the junction of two or more States, or parts of States,
without the consent of the legislatures of the States concerned, as well
as of the Congress."

In the articles of Confederation, no provision is found on this
important subject. Canada was to be admitted of right, on her joining in
the measures of the United States; and the other COLONIES, by which were
evidently meant the other British colonies, at the discretion of nine
States. The eventual establishment of NEW STATES seems to have been
overlooked by the compilers of that instrument. We have seen the
inconvenience of this omission, and the assumption of power into which
Congress have been led by it. With great propriety, therefore, has the
new system supplied the defect. The general precaution, that no
new States shall be formed, without the concurrence of the federal
authority, and that of the States concerned, is consonant to the
principles which ought to govern such transactions. The particular
precaution against the erection of new States, by the partition of a
State without its consent, quiets the jealousy of the larger States; as
that of the smaller is quieted by a like precaution, against a junction
of States without their consent.

5. "To dispose of and make all needful rules and regulations respecting
the territory or other property belonging to the United States," with a
proviso, that "nothing in the Constitution shall be so construed as to
prejudice any claims of the United States, or of any particular State."

This is a power of very great importance, and required by considerations
similar to those which show the propriety of the former. The proviso
annexed is proper in itself, and was probably rendered absolutely
necessary by jealousies and questions concerning the Western territory
sufficiently known to the public.

6. "To guarantee to every State in the Union a republican form of
government; to protect each of them against invasion; and on application
of the legislature, or of the executive (when the legislature cannot be
convened), against domestic violence."

In a confederacy founded on republican principles, and composed of
republican members, the superintending government ought clearly
to possess authority to defend the system against aristocratic or
monarchial innovations. The more intimate the nature of such a union may
be, the greater interest have the members in the political institutions
of each other; and the greater right to insist that the forms
of government under which the compact was entered into should be
SUBSTANTIALLY maintained. But a right implies a remedy; and where
else could the remedy be deposited, than where it is deposited by the
Constitution? Governments of dissimilar principles and forms have been
found less adapted to a federal coalition of any sort, than those of
a kindred nature. "As the confederate republic of Germany," says
Montesquieu, "consists of free cities and petty states, subject to
different princes, experience shows us that it is more imperfect than
that of Holland and Switzerland." "Greece was undone," he adds, "as soon
as the king of Macedon obtained a seat among the Amphictyons." In
the latter case, no doubt, the disproportionate force, as well as the
monarchical form, of the new confederate, had its share of influence on
the events. It may possibly be asked, what need there could be of such
a precaution, and whether it may not become a pretext for alterations in
the State governments, without the concurrence of the States themselves.
These questions admit of ready answers. If the interposition of the
general government should not be needed, the provision for such an event
will be a harmless superfluity only in the Constitution. But who can say
what experiments may be produced by the caprice of particular States, by
the ambition of enterprising leaders, or by the intrigues and influence
of foreign powers? To the second question it may be answered, that if
the general government should interpose by virtue of this constitutional
authority, it will be, of course, bound to pursue the authority. But the
authority extends no further than to a GUARANTY of a republican form of
government, which supposes a pre-existing government of the form which
is to be guaranteed. As long, therefore, as the existing republican
forms are continued by the States, they are guaranteed by the federal
Constitution. Whenever the States may choose to substitute other
republican forms, they have a right to do so, and to claim the federal
guaranty for the latter. The only restriction imposed on them is, that
they shall not exchange republican for antirepublican Constitutions;
a restriction which, it is presumed, will hardly be considered as a
grievance.

A protection against invasion is due from every society to the parts
composing it. The latitude of the expression here used seems to secure
each State, not only against foreign hostility, but against ambitious or
vindictive enterprises of its more powerful neighbors. The history, both
of ancient and modern confederacies, proves that the weaker members of
the union ought not to be insensible to the policy of this article.

Protection against domestic violence is added with equal propriety. It
has been remarked, that even among the Swiss cantons, which, properly
speaking, are not under one government, provision is made for this
object; and the history of that league informs us that mutual aid is
frequently claimed and afforded; and as well by the most democratic,
as the other cantons. A recent and well-known event among ourselves has
warned us to be prepared for emergencies of a like nature.

At first view, it might seem not to square with the republican theory,
to suppose, either that a majority have not the right, or that a
minority will have the force, to subvert a government; and consequently,
that the federal interposition can never be required, but when it would
be improper. But theoretic reasoning, in this as in most other cases,
must be qualified by the lessons of practice. Why may not illicit
combinations, for purposes of violence, be formed as well by a majority
of a State, especially a small State as by a majority of a county, or a
district of the same State; and if the authority of the State ought, in
the latter case, to protect the local magistracy, ought not the federal
authority, in the former, to support the State authority? Besides, there
are certain parts of the State constitutions which are so interwoven
with the federal Constitution, that a violent blow cannot be given to
the one without communicating the wound to the other. Insurrections in
a State will rarely induce a federal interposition, unless the number
concerned in them bear some proportion to the friends of government. It
will be much better that the violence in such cases should be repressed
by the superintending power, than that the majority should be left to
maintain their cause by a bloody and obstinate contest. The existence of
a right to interpose, will generally prevent the necessity of exerting
it.

Is it true that force and right are necessarily on the same side
in republican governments? May not the minor party possess such a
superiority of pecuniary resources, of military talents and experience,
or of secret succors from foreign powers, as will render it superior
also in an appeal to the sword? May not a more compact and advantageous
position turn the scale on the same side, against a superior number so
situated as to be less capable of a prompt and collected exertion of its
strength? Nothing can be more chimerical than to imagine that in a trial
of actual force, victory may be calculated by the rules which prevail
in a census of the inhabitants, or which determine the event of an
election! May it not happen, in fine, that the minority of CITIZENS may
become a majority of PERSONS, by the accession of alien residents, of
a casual concourse of adventurers, or of those whom the constitution of
the State has not admitted to the rights of suffrage? I take no notice
of an unhappy species of population abounding in some of the States,
who, during the calm of regular government, are sunk below the level of
men; but who, in the tempestuous scenes of civil violence, may emerge
into the human character, and give a superiority of strength to any
party with which they may associate themselves.

In cases where it may be doubtful on which side justice lies, what
better umpires could be desired by two violent factions, flying to arms,
and tearing a State to pieces, than the representatives of confederate
States, not heated by the local flame? To the impartiality of judges,
they would unite the affection of friends. Happy would it be if such a
remedy for its infirmities could be enjoyed by all free governments; if
a project equally effectual could be established for the universal peace
of mankind!

Should it be asked, what is to be the redress for an insurrection
pervading all the States, and comprising a superiority of the entire
force, though not a constitutional right? the answer must be, that such
a case, as it would be without the compass of human remedies, so it is
fortunately not within the compass of human probability; and that it
is a sufficient recommendation of the federal Constitution, that it
diminishes the risk of a calamity for which no possible constitution can
provide a cure.

Among the advantages of a confederate republic enumerated by
Montesquieu, an important one is, "that should a popular insurrection
happen in one of the States, the others are able to quell it. Should
abuses creep into one part, they are reformed by those that remain
sound."

7. "To consider all debts contracted, and engagements entered into,
before the adoption of this Constitution, as being no less valid
against the United States, under this Constitution, than under the
Confederation."

This can only be considered as a declaratory proposition; and may have
been inserted, among other reasons, for the satisfaction of the foreign
creditors of the United States, who cannot be strangers to the pretended
doctrine, that a change in the political form of civil society has the
magical effect of dissolving its moral obligations.

Among the lesser criticisms which have been exercised on the
Constitution, it has been remarked that the validity of engagements
ought to have been asserted in favor of the United States, as well
as against them; and in the spirit which usually characterizes little
critics, the omission has been transformed and magnified into a plot
against the national rights. The authors of this discovery may be told,
what few others need to be informed of, that as engagements are in
their nature reciprocal, an assertion of their validity on one side,
necessarily involves a validity on the other side; and that as the
article is merely declaratory, the establishment of the principle in one
case is sufficient for every case. They may be further told, that
every constitution must limit its precautions to dangers that are
not altogether imaginary; and that no real danger can exist that the
government would DARE, with, or even without, this constitutional
declaration before it, to remit the debts justly due to the public, on
the pretext here condemned.

8. "To provide for amendments to be ratified by three fourths of the
States under two exceptions only."

That useful alterations will be suggested by experience, could not but
be foreseen. It was requisite, therefore, that a mode for introducing
them should be provided. The mode preferred by the convention seems to
be stamped with every mark of propriety. It guards equally against that
extreme facility, which would render the Constitution too mutable; and
that extreme difficulty, which might perpetuate its discovered faults.
It, moreover, equally enables the general and the State governments to
originate the amendment of errors, as they may be pointed out by the
experience on one side, or on the other. The exception in favor of the
equality of suffrage in the Senate, was probably meant as a palladium
to the residuary sovereignty of the States, implied and secured by that
principle of representation in one branch of the legislature; and
was probably insisted on by the States particularly attached to that
equality. The other exception must have been admitted on the same
considerations which produced the privilege defended by it.

9. "The ratification of the conventions of nine States shall be
sufficient for the establishment of this Constitution between the
States, ratifying the same."

This article speaks for itself. The express authority of the people
alone could give due validity to the Constitution. To have required the
unanimous ratification of the thirteen States, would have subjected
the essential interests of the whole to the caprice or corruption of
a single member. It would have marked a want of foresight in the
convention, which our own experience would have rendered inexcusable.

Two questions of a very delicate nature present themselves on this
occasion: 1. On what principle the Confederation, which stands in the
solemn form of a compact among the States, can be superseded without the
unanimous consent of the parties to it? 2. What relation is to subsist
between the nine or more States ratifying the Constitution, and the
remaining few who do not become parties to it?

The first question 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. PERHAPS, also, an answer may be found without searching
beyond the principles of the compact itself. It has been heretofore
noted among the defects of the Confederation, that in many of the States
it had received no higher sanction than a mere legislative ratification.
The principle of reciprocality seems to require that its obligation
on the other States should be reduced to the same standard. A compact
between independent sovereigns, founded on ordinary acts of legislative
authority, can pretend to no higher validity than a league or treaty
between the parties. It is an established doctrine on the subject of
treaties, that all the articles are mutually conditions of each other;
that a breach of any one article is a breach of the whole treaty; and
that a breach, committed by either of the parties, absolves the others,
and authorizes them, if they please, to pronounce the compact violated
and void. Should it unhappily be necessary to appeal to these delicate
truths for a justification for dispensing with the consent of particular
States to a dissolution of the federal pact, will not the complaining
parties find it a difficult task to answer the MULTIPLIED and IMPORTANT
infractions with which they may be confronted? The time has been when it
was incumbent on us all to veil the ideas which this paragraph exhibits.
The scene is now changed, and with it the part which the same motives
dictate.

The second question is not less delicate; and the flattering prospect of
its being merely hypothetical forbids an overcurious discussion of it.
It is one of those cases which must be left to provide for itself. In
general, it may be observed, that although no political relation can
subsist between the assenting and dissenting States, yet the moral
relations will remain uncancelled. The claims of justice, both on one
side and on the other, will be in force, and must be fulfilled; the
rights of humanity must in all cases be duly and mutually respected;
whilst considerations of a common interest, and, above all, the
remembrance of the endearing scenes which are past, and the anticipation
of a speedy triumph over the obstacles to reunion, will, it is hoped,
not urge in vain MODERATION on one side, and PRUDENCE on the other.

PUBLIUS

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Madison explains and defends what he calls a "fourth class" of "miscellaneous powers." These include the power to grant patents and copyrights, the power to pass all laws governing the capital city and federal buildings, the power to determine the definition of and punishment for treason, and the power to admit new states. The national government is not allowed, however, to join two or more states or separate off part of a state to form a new state, without the consent of the states involved. Madison furthermore defends the power of Congress to make rules and regulations regarding territory and property belonging to the United States. One of the most important powers Madison defends in this paper is the power of the national government to guarantee the republican form of government in each state and to protect each state against invasion and domestic violence. Madison argues that in a union, the political institutions of one state can impact the interests of another. Therefore, the union has the right to ensure that state governments retain the republican character that characterizes American political culture nationwide. Madison furthermore claims that it is possible that a combination of foreign intervention and other malicious forces may result in a majority of a particular state changing the form of its government. In such cases, it is necessary for a higher power, separated from the conflict, to protect the republican character of state government. Madison furthermore defends as commonsense the power of Congress to pay off all debts acquired by the United States under the Articles and to provide for amendments to the Constitution to be ratified by the states. Finally, Madison defends the article declaring that the Constitution will come into effect once nine states ratify it. He asserts that it would be unfair and unwise to let the objections of a few states hold hostage the interests of the great majority.