Federalist No. 43 was written by James Madison under the name Publius. Its subtitle is “The Same Subject Continued: The Powers Conferred by the Constitution Further Considered.” In this essay, Madison continues reviewing the powers granted to the new federal government. Here he focuses on what he earlier called miscellaneous powers of general utility, along with several constitutional provisions meant to preserve the Union and protect republican government.
This paper matters because Madison defends a set of powers that may look small or technical when viewed one at a time, but together help hold the constitutional system together. He discusses the power to admit new states, govern federal territory, guarantee republican government in the states, protect them against invasion and domestic violence, propose amendments, and punish treason. In short, this is one of the papers where Madison explains how the Constitution was meant not only to create a government, but to preserve a workable Union over time.
Full Text of Federalist No. 43
The Same Subject Continued
The Powers Conferred by the Constitution Further Considered
For the Independent Journal.
MADISON
To the People of the State of New York:
THE fourth class comprises the following miscellaneous powers:
- 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.”
- “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 legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.”
- “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 attainted.”
The utility of the first 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.
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, require 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.
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 power of declaring the punishment of treason is expressly submitted to the national legislature, though the Constitution itself defines the crime. Treason against the United States must be limited to levying war against them, or adhering to their enemies, giving them aid and comfort. This definition is drawn from the Constitution of England, and was adopted with great judgment. As treason may be committed against the United States, the authority of the United States ought alone 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 propriety, 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.
The fifth class of powers consists of the following restrictions on the authority of the several States:
- “No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.”
- “No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of Congress. No State shall, without the consent of Congress, lay any duty on tonnage; keep troops or ships of war in time of peace; enter into any agreement or compact with another State or with a foreign power; or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”
The prohibitions against treaties, alliances, and confederations make a part of the existing Articles of Union; and for reasons which need no explanation. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the States after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the United States. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible.
The right of coining money, which is here taken from the States, was left in their hands under the Confederation, as a concurrent right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy and value. In this instance, also, the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the particular States could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces. The latter inconvenience defeats one purpose for which the power was originally submitted to the federal head; and as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the general authority.
The extension of the prohibition to bills of credit must give pleasure to every citizen, in proportion to his love of justice and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man; on the necessary confidence in the public councils; on the industry and morals of the people; and on the character of republican government, constitutes an enormous debt against the States chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it.
In addition to these persuasive considerations, it may be observed, that the same reasons which show the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in place of coin. Had every State a right to regulate the value of its coin, there might be as many different currencies as States; and thus the intercourse among them would be impeded. Retaining the power over the medium of debts, while Congress were to regulate the value, would be as much a mockery as to require them to regulate the value of coin, while the States had the power of substituting paper in place of coin. The same reasons which show the utility of a power in Congress to regulate foreign commerce, show that the States ought not, in a commercial view, to be allowed to adopt any regulations, which would defeat the effect of general regulations. The same reasons which show the necessity of an immediate authority in the federal government over the reciprocal commerce of the States, in order to prevent unjust and vexatious regulations by the latter, prove that the same authority ought, for the same purpose, to be exerted over the medium in which the commerce is carried on.
The prohibition with respect to laws impairing the obligation of contracts is perhaps one of the most honorable and useful improvements in the Constitution. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen, with regret and indignation, that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators; and snares to the more industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.
The prohibition of ex post facto laws and of bills of attainder appears to every citizen in the light of those fundamental principles of the social compact, which regulate every free government. The prohibition of titles of nobility is copied from the Articles of Confederation and needs no comment.
The prohibition of imposts and duties on imports and exports without the consent of Congress, grows out of the necessity of preserving that part of the federal authority which regulates trade. The prohibition of duties on tonnage has the same foundation. The restraint on keeping troops or ships of war in time of peace, entering into compacts, or engaging in war, except in cases of actual invasion or imminent danger, is manifestly proper to keep the peace of the Union and the unity of its external posture.
The sixth and last class consists of the several powers and provisions by which all the others are to be carried into effect.
- Of these, the first is, the “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
- The second is, “that this Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”
- The third is, “that the senators and representatives, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by oath or affirmation, to support this Constitution.”
These provisions have been already defended in a former paper, and it is unnecessary to repeat the reasoning there employed. It may, however, be remarked in a single view, that without the substance of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the form of the provision is improper. But there appears to be no room for a charge of this nature. The article is merely declaratory of a truth which would have resulted, by unavoidable implication, from the very act of constituting a federal government and vesting it with certain powers. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed.
A law, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If it were not so, the government would be nothing more than a treaty, depending on the good faith of the parties, and not a government, which is only another word for political power and supremacy.
The propriety of a national oath or affirmation to support the national Constitution is obvious. It is necessary that the obligations of the officers of the Union should be bound by a solemn tie to the Constitution which they are to administer. And as the local officers may be essential agents in giving effect to the general government, it was proper also that they should be bound by a similar sanction.
Having thus gone through the powers conferred by the Constitution, so far as they can be arranged under their several classes, the next and remaining inquiry will be: whether the powers reserved to the States are sufficient to secure the residuary sovereignty of those bodies? and whether the Constitution is so organized as to maintain a due dependence of the general government on the people, and a due responsibility to them?
PUBLIUS.
Why Federalist No. 43 Matters
Federalist No. 43 matters because Madison explains a set of constitutional powers and restrictions that keep the Union workable, lawful, and durable. Some of them protect authors, inventors, and federal installations. Others prevent the states from disrupting commerce, public credit, treaties, and justice. Still others preserve republican government and make clear that federal law must be supreme within its proper sphere.
It is also one of the most important papers for understanding Madison’s attitude toward unstable state legislation. His discussion of paper money, contract impairment, and fluctuating policy is a direct warning about what happens when legislatures sacrifice justice and stability to short-term political advantage.
Related Links
- Federalist No. 43 Highlights
- Federalist Papers
- James Madison
- Federalist No. 42
- United States Constitution
- Articles of Confederation