Federalist Papers Summary 42
The Federalist Essays Summary No 42: James Madison January 22, 1788
This paper addresses the second and third classes of power given to the Government by the proposed Constitution as mentioned in the last paper. The second class consists of those powers that regulate the intercourse with foreign nations, to wit, make treaties, to send and receive public officials, to define and punish crimes committed on the high seas, to regulate foreign commerce, and the power to prohibit after 1808 the importation of slaves and discourage such importations. The powers included in the third class are those which “provide for the harmony and proper intercourse among the States”. This part of the discussion will includes the commerce clause and the rationale for it, if that is of interest today.
The language in the proposed Constitution concerning the powers in the second class are essentially improvements based on experience over similar language in the Articles of Confederation. For example in the Articles treaties could be frustrated by regulations of the States and only Ambassadors were admitted to the country and not “other public Ministers and Consuls”. Additional improvements were made with the power to define and punish piracies and felonies committed on the high seas and offenses against the law of nations. The word “define” was included because the laws concerning these offenses were not uniform and a country it was thought needed to establish them through legislative action.
The first mention in any of the papers of slavery occurs in this section. The proposed Constitution allows the importation of slaves for 20 years until 1808 with a tax of $10 levied per head. This compromise with the Southern States was necessary to achieve ratification but it was both deplored by Madison for allowing the additional 20 years and praised for taking the actions necessary to end this traffic.
The third class of powers discussed include the power to regulate commerce among the several States and Indian tribes, to coin money, to fix the standard of weights and measures, to establish a uniform rule of naturalization and uniform rules of bankruptcy, set standards to record public acts and to establish post-offices and post roads. All of these powers except one are uncontroversial. The Articles of Confederacy did not address commerce between the States and this caused disharmony between States with seaports that imported and exported commerce and those whose commerce had to pass through those States. The States with seaports often added duties to the articles of export and import that passed through their States to the other States thereby disadvantaging the manufacturers and consumers of those States. This commerce clause was included to relieve the States thus disadvantaged and complete the power to regulate foreign commerce. One cannot read this passage and assume it gives the National Government the power to totally regulate all aspects of any commerce that involves more than a single State. That is a total usurpation of power never intended to be placed in the hands of Government. The clause was included to solve a particular problem, namely to create a level playing field for manufacturers and consumers of goods to or from foreign nations, and thus restore harmony and proper intercourse among the States. There is no mention or inference by Madison that commerce that does not have a foreign origin or destination is to be regulated in any way by this power.
Federalist Papers Summary 42 Written by Donald Mellon
