Federalist No. 44 was written by James Madison under the name Publius. Its subtitle is “Restrictions on the Authority of the Several States.” In this essay, Madison continues examining the powers and limits created by the Constitution, with special attention to the restrictions placed on the states and the necessity of certain federal powers to make the whole system work.
This paper matters because Madison argues that several constitutional provisions attacked by opponents — especially the Necessary and Proper Clause and the Supremacy Clause — are not sinister inventions, but practical necessities in any real government. He also strongly defends the bans on state laws impairing contracts, ex post facto laws, and paper money, treating them as essential protections for justice, stability, and public confidence.
Full Text of Federalist No. 44
Restrictions on the Authority of the Several States
For the New York Packet.
MADISON
To the People of the State of New York:
A FIFTH class of provisions in favor of the federal authority 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 any thing 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 the 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 first class of restrictions is justified by the obvious necessity of preserving the Union from all interference with its external relations, and from all confusion in those internal regulations which affect the faith and harmony of the whole.
The prohibition against treaties, alliances, and confederations makes 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 the 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, whilst Congress should regulate the value of coin, would be as much a mockery as to require them to regulate the value of coin, whilst the States had the power of substituting a paper medium in its place. The same reasons which show the utility of a power in Congress to regulate the commerce of the country, show that they ought not to be at liberty to substitute a paper medium in place of coin. The same reasons which show the necessity of an immediate authority in the federal councils over the medium of intercourse among the States, prove also the necessity of an authority over the medium by which commercial intercourse is carried on.
The prohibition with respect to laws impairing the obligation of contracts is equally justified by the same principles. 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 fundamental principles of the social compact and every principle of sound legislation.
The two prohibitions are founded on great and well known principles of justice, and have accordingly been respected by the constitutions of all the States; and may both be seen in the constitutional law of England.
The prohibition of titles of nobility is copied from the Articles of Confederation and needs no comment.
The sixth and last class consists of the powers and provisions by which efficacy is given to all the rest.
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.”
Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. 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 have they considered whether a better form could have been substituted?
There are four other possible methods which the Constitution might have taken on this subject.
- The first method would be to copy the second article of the existing Confederation, which would prohibit the exercise of any power not EXPRESSLY delegated.
- Another method would be to attempt a positive enumeration of the powers necessary and proper for carrying the delegated powers into execution.
- A third method would be to attempt a negative enumeration of the powers not necessary or proper for carrying the delegated powers into execution.
- The fourth and last method would be to leave the Constitution silent on this head.
Had the Convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term “EXPRESSLY” with so much rigor as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. It would be easy to show, if it were not unnecessary, that no important power, delegated by the Articles of Confederation, has been or can be executed by Congress without recurring more or less to the doctrine of CONSTRUCTION or IMPLICATION.
Had the Convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too not only to the existing state of things, but to all the possible changes which futurity may produce. Had they attempted to enumerate the particular powers or means not necessary or proper, the task would have been no less chimerical; and would have been liable moreover to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If they had attempted to be silent on this head, the silence itself would have been a source of endless uncertainty and contention.
No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.
Had this last method been pursued by the Convention, every objection now urged against the article under consideration would have remained applicable to the powers retained by the government, whether inferred from the general nature of the powers or from the omission to enumerate the means of carrying them into execution.
If it be asked what is to be the consequence, in case Congress shall misconstrue this part of the Constitution and exercise powers not warranted by its true meaning, I answer the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people, who can by the election of more faithful representatives annul the acts of the usurpers.
The second provision 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.”
The propriety of this clause has been elsewhere demonstrated. Without it, the authority of the whole Union would be subordinate to that of the parts; and the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of societies subordinate to the authority of the individuals composing them; it would have seen a monster, in which the head was under the direction of the members.
The third provision 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 of the several States, shall be bound by oath or affirmation to support this Constitution.”
It has been asked, why it was thought necessary that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States in favor of the State constitutions?
Several reasons might be assigned for the distinction. I content myself with one which is obvious and conclusive. The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend in all cases on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance, and will, probably, forever be conducted by the officers, and according to the laws, of the States.
The legislators, courts, and magistrates of the respective members will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws.
Any man who will pursue by his own reflections the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the Union, if its powers are administered with a common share of prudence.
PUBLIUS
Why Federalist No. 44 Matters
Federalist No. 44 matters because Madison defends several of the Constitution’s most practical and controversial safeguards. He argues that prohibitions on paper money, contract impairment, bills of attainder, and ex post facto laws are not technical niceties, but defenses of justice, trust, and social stability.
It is also one of the key papers on the Necessary and Proper Clause. Madison insists that a government charged with real duties must have the means to carry them into effect, and that without such a provision the Constitution would become, in his words, “a dead letter.”
Related Links
- Federalist No. 44 Highlights
- Federalist Papers
- James Madison
- Federalist No. 43
- United States Constitution
- Articles of Confederation