FEDERALIST No. 41



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