Federalist Papers Summary No. 44

 

Federalist Papers Summary No. 44

 
 

Federalist Papers Author James Madison
James Madison

Federalist Papers Summary Number 44

The Federalist Papers Summary No 44:  Madison
January 25, 1788

Madison describes the remaining fifth and sixth classes of Federal authority in the Constitution and provides rationale for their inclusion.  The fifth class consists of restrictions on the authority of the States spelled out in Article I, Section 10 of the Constitution.  The first paragraph 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.”  The prohibition against Treaties, Alliances, and Confederations and letters of Marque and Reprisal (a government license for piracy or reprisal for injury) is carried forth from the the Articles of Confederation and required no further justification.  Bills of Credit were essentially paper money issued by governments and were prohibited in favor of gold or silver as tender for payment of debts.  Allowing only the federal Government to coin money was primarily to standardize the currency rather than having each State coining with different denominations and alloys.  A bill of Attainder is an act by a legislature that declares guilt on a person or party without a trial and is prohibited as are ex post facto laws that make actions criminal that were legal when committed.

The second and third paragraph of Section 10, repeated here, received very little justification or comment from Madison, but one phrase may be of enormous importance to the future liberty of the citizens of our country.   “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 it's 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 Controul of the Congress. No State shall, without the Consent of Congress, lay any Duty of 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 bold phrase above is being considered as a constitutional means to prevent in particular ObamaCare from being forced on the States and in general to limit the intrusion of the Federal Government into our lives.  An agreement between two or more States if approved by Congress supersedes Federal Law.  As of 2011 Arizona, Montana and nine other states have approved or are considering an agreement that would return regulatory authority over health care to their States.  If congressional approval means a simple majority in both houses then action would seem within grasp.  For more information see “Resisting Obamacare with the Interstate Compact” on theLandoftheFree.net.

The sixth and last class of powers were added according to Madison to give efficiency to all the rest but they also gave considerable cause for alarm to those concerned about unconstrained Government power.  “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.”   Madison argues that “without the substance of this power the whole Constitution would be a dead letter”.  Since the substance is required the objection must be of the form of the provision.  He then lists four other possible forms;  it might say that the exercise of any power not expressly delegated was prohibited, or attempted a positive enumeration of the necessary powers, or a negative enumeration of the powers excepted or said nothing “leaving the necessary and proper powers to construction and inference”.  The argument against the forms other than silence has the same result since there is no way to be complete now or for the future in any enumeration or delegation thus ensuring a “doctrine of construction or implication” in all Congressional activities.

The remaining powers mentioned are summarized as, making the Constitution and laws of the United States the supreme law of the land, requiring all Federal and State Senators, Representatives, executive and judicial officers to take an oath to support the Constitution, and powers given to the executive and judicial departments.  The powers given to the executive and judicial departments are saved for later papers.  Making the laws of the United States the law of the land, while controversial given the desire for sovereignty of the States by the States, is an obvious requirement.  If State's Constitutions overrode the Federal Constitution there would be no Federal authority or uniformity and no improvement over the Articles of Confederacy being replaced.  The oath is to ensure this does not happen.

 

Summary Written by Donald Mellon

 

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