Federalist 42 Paraphrased
Federalist Number 42: Two Kinds of Powers Outlined in the Constitution paraphrased into Modern English
One of the most frequently cited Federalist Papers by the Supreme Court
by James Madison, Jan 22, 1788
To: the people of New York,
The second group of powers that the government has gained under the new Constitution is the ability to manage business exchanges with foreign countries. This means making treaties; sending and receiving ambassadors, other government officials and foreign ministers; defining what constitutes crime on the open seas and punishing those who commit them, as well as punishing those who violate the law of nations [a book of International Law]; and manage commerce with other nations. In the immediate timeframe, this means they are allowed to charge a duty of ten dollars per slave to discourage the slave trade, and after 1808, they will have the power to completely ban the importing of slaves. This group of powers makes up an essential part of federal management for obvious reasons. If there's any area where it's important for us to be one united country, it's certainly in the area of dealing with foreign nations. The authority to make treaties and to send and receive ambassadors is clearly proper for a federal government. Both of these powers were included as part of the Articles of Confederation -- the only difference being that the authority to make treaties is now expanded from the Articles' weaker guidelines that enabled treaties to be seriously hindered by regulations from various States, and that the authority to send and receive "other government officials and foreign ministers" is clearly spelled out in the part of the Constitution that talks about ambassadors. The word "ambassadors," strictly speaking, as used in the second article of the Articles of Confederation, seems to refer only to the highest ranking officials rather than the officials that the United States is most likely to meet with from foreign embassies. In no way can the word the way it's used in the Articles of Confederation be construed to include consuls. Yet it's generally more practical to do what Congress has been doing all along: using lower ranking public ministers, and sending and receiving consuls. Of course, when treaties dealing with commercial business require that consuls whose jobs are connected with commerce must be appointed on both sides, then receiving foreign consuls may legitimately fall within the authority of making commercial treaties. If there isn't a commercial treaty, the job of American consuls going into other countries might be covered under the ninth article of the Articles of Confederation, which says that it might be necessary to appoint whatever civil officers are needed to manage the general affairs of the United States. But receiving foreign consuls into the United States who aren't coming to discuss a specific treaty doesn't seem to be mentioned anywhere in the Articles. The Constitution has added something that was left out, and that is an improvement over the Articles of Confederation. That may seem minor, but even the most insignificant policies become important when they prevent any loopholes that might be used for gradual and unperceived seizing of additional power. Anyone who has been paying attention would not be surprised by a list of times when Congress has been unwittingly, or even forcibly put in a position because of flaws in the Articles of Confederation, where they overstepped the authority outlined for them. The Constitution's careful provision for such lesser matters is an even stronger argument than the obvious flaws of the old Articles of Confederation for ratifying the new Constitution.
The authority to define piracy and crimes on the high seas as well as violations against the law of nations and punish the offenders is also something that's appropriate for a federal government, and that's another way in which the Constitution is an improvement over the Articles of Confederation. The Articles also say nothing about offenses against the law of nations, which leaves it open for any careless member [of Congress?] to entangle the US with foreign countries. The Articles of Confederation's handling of piracies and crimes at sea only goes far enough to establishing courts to try these offenses. Defining what constitutes piracy or crimes at sea might be conveniently left to the law of nations, but most other ordinances of countries and states provide their own legal definition of felonies at sea.
That shows that defining felonies at sea must be important. The term "felony" is vague, even according to England's common law, and is used to signify crimes of various degrees in England's law of statutes. But why should England's laws, or any other country's laws, be our own standard by default, unless our legislators vote to adopt their standard? Depending on individual States codes to decide for us would be as impractical as it would be dishonorable and improper to assume a foreign country's definition by default, since no two States define it in the exact same way, and it can change with every revision in their codes. In order to be clear and uniform, it was necessary and fitting to define felonies at sea.
Earlier Federalist Papers have discussed managing commerce with other countries thoroughly enough that there's no need to give further proofs that this is an authority that properly belongs to a federal government. It's unfortunate that the authority to ban the importing of slaves must wait until the year 1808 instead of banning it immediately. But there's a good reason for this restriction and the way this whole clause is written. It is a great victory for humanity that, in only twenty years, there will be an end forever in the United States to the trafficking of slaves, a practice that has been criticized loudly for a long time as an atrocity of modern policy. Within that twenty years, the federal government will work to discourage the slave trade, and perhaps it will be abolished before then if the few states that still trade slaves see the example of the majority of states that do not engage in the slave trade. How happy it will be for the unfortunate Africans if they have the hope of being freed from the oppression of their white brothers!
Some have tried to use this clause as an objection against the Constitution by making it sound like a corrupt tolerance of an immoral practice on the one hand, and as a calculated way of preventing the willing and beneficial immigration of people from Europe to America on the other. I'm not mentioning these misrepresentations in order to refute them, because they don't deserve a response. I just want to point out the various methods and spirit that some people have used to oppose the Constitution.
The third group of powers are those that provide harmony and proper business relations between the States. This includes the specific limits placed on the States, and specific powers of the judicial system. The limits on the States are because those powers are reserved for a specific class [the federal judicial system], and the powers of the judicial system will be discussed later when we come to the structure and organization of the government. I'll limit myself to a brief overview of the remainining powers in this third group -- namely, regulating commerce between the individual States and the Indian tribes; minting coins and determining their value against the value of foreign money; deciding the appropriate punishment for counterfeiting money and securities of the United States; setting the standards of weights and measures; establishing uniform rules for naturalization and uniform bankrupcy laws; specifying how public records and judicial proceedings in each State will be verified, and how much effect they will have in other States; and establishing post offices and roads to connect them. We've already experienced issues because of the Articles of Confederation's failure to address commerce between States. Those defects have been mentioned in previous Federalist Papers. I will only add that, without this added provision, the country's ability to regulate foreign commerce, which is so necessary, would be incomplete and ineffective. One tangible goal of this power was to relieve States that import and export through other States from unfair fees required by those other States. If individual States were allowed to regulate trade between States, there would undoubtedly be unfair rules and duties written to place fees on those purchasing imports and producing exports as those goods pass through their States. We know from past experience that this would happen. Due to that and human nature, there would be endless resentments, which would likely result in severe disruptions of domestic peace. Anybody looking at this objectively can see that the individual States' desire to collect revenue from their non-commercial neighboring States in any way is both unwise and unfair. It would motivate the unfairly treated States to find longer routes to import their foreign goods to avoid going through those States out of resentment and for their own financial benefit. But the calm voice of reason looking out for the long-term greater good is too often drowned out by those clamoring impatiently and greedily for immediate and unbridled financial gain. The need for having a federal authority overseeing the trade between individual States has been illustrated by the experiences of other countries. In Switzerland, where the cantons are only loosely united, cantons must allow merchandise from other cantons to pass through without charging a toll. Germany has a law that individual states may not collect tolls or customs on bridges, rivers, or roads, without the consent of the emperor, although a quote from a previous Federalist Paper suggests that Germany has not complied with their own rules, and it has resulted in the exact problems that we hope to avoid. The Netherlands doesn't allow its members to impose fees that are detrimental to their neighbors without permission from the rest of the country.
The Constitution corrects two ways that The Articles of Confederation dealt with commerce with the Indians that were unclear and contradictory. In the Articles, the authority is limited to Indians rather than to members of any of the States, and that authority is not allowed to violate or infringe on any State 's authority to enforce their own laws. The problem is, it hasn't been determined which Indians are members of any State. That is a perplexing question that has not yet been settled, and is still being hotly debated in federal meetings. What about Indians that live in a State, but are not considered citizens of that State? How can a federal power under the Article's policy regulate trade without violating that State's own laws? Such a confusing dilemma is baffling. This is not the only instance where the Articles of Confederation have tried to regulate an impossible situation. Trying to reconcile the partial sovereignty of the Federal Government with the complete sovereignty of each State is like trying to solve a mathematical equation by removing part of it while leaving the equation whole.
The only comment that needs to be made about minting coins and determining their value and the value of foreign money is by remarking that, in the case of foreign money, the Constitution has included a provision that was left out of the Articles. The Articles only allow Congress to regulate coins that have been minted under their authority, or under the authority of the States. It's apparent that proposing a uniform value of our current coins will be undermined if the value of foreign money is determined by each individual State. Deciding the appropriate punishment for counterfeiting money and securities of the United States is appropriate for the governing authority responsible for determining the value of both. Setting the standards of weights and measures was already in the Articles of Confederation, and, as before, it makes sense to leave that to the governing authority that regulates the minting and value of coins.
The various laws about naturalizing immigrants from state to state has been a well-known flaw in our system for a long time, and leaves room for complicated and tricky questions. In the Articles of Confederation, the fourth article says that "the free INHABITANTS of each State, not including beggars, rambling vagrants, and criminals running from the law, are entitled to the same privileges and immunities that free CITIZENS have in the States; and the PEOPLE of each State are entitled to all the privileges of trade and commercial business," etc. This is a remarkably inconsistent confusion of language. It uses three different terms -- inhabitants, citizens, people -- and is vague about "the same privileges and immunities." It's unclear what is meant by "all the privileges of trade and commercial business." It sounds like the free INHABITANTS, even if they're not citizens, are entitled to the same privileges and immunities as free CITIZENS -- in fact, they may be entitled to more privileges than they would back in their own state! A State, therefore -- and possibly every State -- will find it necessary to grant the rights of citizenship [which infers US citizenship] not only to those that it defines as citizens, but any person who happens to live there. If the term "inhabitants" was defined to limit its meaning to "citizens," that would help clear things up a little, but not totally. It still allows States the improper authority to naturalize immigrants in every other State. One State allows anyone who lives there for a certain amount of time to be granted citizenship, while a second State has additional requirements. Therefore, an immigrant who may not legally qualify for rights in the second State, could claim his citizenship in the first State in order to qualify for rights in the second one. This makes the laws of one State superior to the laws of a second State, even within the boundaries of the second State! It's a lucky accident that nothing yet has happened to draw attention to this awkward situation. Some States have laws that prevent certain groups of people who caused trouble to gain citizenship, or to even live there. What if these people could go to a second State, claim citizenship based on living in the first State for awhile, and then demand their rights in the second State based on that? There would be legal consequences, and even worse potential consequences if the law wasn't clarified. The new Constitution has made provisions to prevent these consequences and others that could have arisen from this flaw in the Articles of Confederation by authorizing the federal government to establish uniform laws of citizenship throughout the United States.
Establishing uniform laws of bankrupcy is closely related to regulating commerce. It will prevent fraud among individuals who live or have property in different States, so it's unlikely that anyone will question the usefulness of that clause. The general laws about verifying public records and judicial proceedings in each State, and how much effect they will have in other States, is obviously a great improvement over the way the Articles of Confederation treated the subject. The meaning of the second part (how much effect they will have in other States) is left vague, and how it ends up being interpreted won't make a big difference. The real authority that this establishes is a convenient tool of justice that will be especially helpful between States that border each other, where manipulative interpretations by the other State can change the meaning of documents at any stage of legal proceedings. And, finally, the authority to build roads between post offices is a harmless clause and, if managed wisely, will create more convenience for the public.
Anything that helps the various States in their dealings with each other is worth the public's concern.
Signed, "Publius Valerius Publicola."
Paraphrased by Leslie Noelani Laurio, April 2020
All Federalist Paper paraphrases
One of the most frequently cited Federalist Papers by the Supreme Court
by James Madison, Jan 22, 1788
To: the people of New York,
The second group of powers that the government has gained under the new Constitution is the ability to manage business exchanges with foreign countries. This means making treaties; sending and receiving ambassadors, other government officials and foreign ministers; defining what constitutes crime on the open seas and punishing those who commit them, as well as punishing those who violate the law of nations [a book of International Law]; and manage commerce with other nations. In the immediate timeframe, this means they are allowed to charge a duty of ten dollars per slave to discourage the slave trade, and after 1808, they will have the power to completely ban the importing of slaves. This group of powers makes up an essential part of federal management for obvious reasons. If there's any area where it's important for us to be one united country, it's certainly in the area of dealing with foreign nations. The authority to make treaties and to send and receive ambassadors is clearly proper for a federal government. Both of these powers were included as part of the Articles of Confederation -- the only difference being that the authority to make treaties is now expanded from the Articles' weaker guidelines that enabled treaties to be seriously hindered by regulations from various States, and that the authority to send and receive "other government officials and foreign ministers" is clearly spelled out in the part of the Constitution that talks about ambassadors. The word "ambassadors," strictly speaking, as used in the second article of the Articles of Confederation, seems to refer only to the highest ranking officials rather than the officials that the United States is most likely to meet with from foreign embassies. In no way can the word the way it's used in the Articles of Confederation be construed to include consuls. Yet it's generally more practical to do what Congress has been doing all along: using lower ranking public ministers, and sending and receiving consuls. Of course, when treaties dealing with commercial business require that consuls whose jobs are connected with commerce must be appointed on both sides, then receiving foreign consuls may legitimately fall within the authority of making commercial treaties. If there isn't a commercial treaty, the job of American consuls going into other countries might be covered under the ninth article of the Articles of Confederation, which says that it might be necessary to appoint whatever civil officers are needed to manage the general affairs of the United States. But receiving foreign consuls into the United States who aren't coming to discuss a specific treaty doesn't seem to be mentioned anywhere in the Articles. The Constitution has added something that was left out, and that is an improvement over the Articles of Confederation. That may seem minor, but even the most insignificant policies become important when they prevent any loopholes that might be used for gradual and unperceived seizing of additional power. Anyone who has been paying attention would not be surprised by a list of times when Congress has been unwittingly, or even forcibly put in a position because of flaws in the Articles of Confederation, where they overstepped the authority outlined for them. The Constitution's careful provision for such lesser matters is an even stronger argument than the obvious flaws of the old Articles of Confederation for ratifying the new Constitution.
The authority to define piracy and crimes on the high seas as well as violations against the law of nations and punish the offenders is also something that's appropriate for a federal government, and that's another way in which the Constitution is an improvement over the Articles of Confederation. The Articles also say nothing about offenses against the law of nations, which leaves it open for any careless member [of Congress?] to entangle the US with foreign countries. The Articles of Confederation's handling of piracies and crimes at sea only goes far enough to establishing courts to try these offenses. Defining what constitutes piracy or crimes at sea might be conveniently left to the law of nations, but most other ordinances of countries and states provide their own legal definition of felonies at sea.
That shows that defining felonies at sea must be important. The term "felony" is vague, even according to England's common law, and is used to signify crimes of various degrees in England's law of statutes. But why should England's laws, or any other country's laws, be our own standard by default, unless our legislators vote to adopt their standard? Depending on individual States codes to decide for us would be as impractical as it would be dishonorable and improper to assume a foreign country's definition by default, since no two States define it in the exact same way, and it can change with every revision in their codes. In order to be clear and uniform, it was necessary and fitting to define felonies at sea.
Earlier Federalist Papers have discussed managing commerce with other countries thoroughly enough that there's no need to give further proofs that this is an authority that properly belongs to a federal government. It's unfortunate that the authority to ban the importing of slaves must wait until the year 1808 instead of banning it immediately. But there's a good reason for this restriction and the way this whole clause is written. It is a great victory for humanity that, in only twenty years, there will be an end forever in the United States to the trafficking of slaves, a practice that has been criticized loudly for a long time as an atrocity of modern policy. Within that twenty years, the federal government will work to discourage the slave trade, and perhaps it will be abolished before then if the few states that still trade slaves see the example of the majority of states that do not engage in the slave trade. How happy it will be for the unfortunate Africans if they have the hope of being freed from the oppression of their white brothers!
Some have tried to use this clause as an objection against the Constitution by making it sound like a corrupt tolerance of an immoral practice on the one hand, and as a calculated way of preventing the willing and beneficial immigration of people from Europe to America on the other. I'm not mentioning these misrepresentations in order to refute them, because they don't deserve a response. I just want to point out the various methods and spirit that some people have used to oppose the Constitution.
The third group of powers are those that provide harmony and proper business relations between the States. This includes the specific limits placed on the States, and specific powers of the judicial system. The limits on the States are because those powers are reserved for a specific class [the federal judicial system], and the powers of the judicial system will be discussed later when we come to the structure and organization of the government. I'll limit myself to a brief overview of the remainining powers in this third group -- namely, regulating commerce between the individual States and the Indian tribes; minting coins and determining their value against the value of foreign money; deciding the appropriate punishment for counterfeiting money and securities of the United States; setting the standards of weights and measures; establishing uniform rules for naturalization and uniform bankrupcy laws; specifying how public records and judicial proceedings in each State will be verified, and how much effect they will have in other States; and establishing post offices and roads to connect them. We've already experienced issues because of the Articles of Confederation's failure to address commerce between States. Those defects have been mentioned in previous Federalist Papers. I will only add that, without this added provision, the country's ability to regulate foreign commerce, which is so necessary, would be incomplete and ineffective. One tangible goal of this power was to relieve States that import and export through other States from unfair fees required by those other States. If individual States were allowed to regulate trade between States, there would undoubtedly be unfair rules and duties written to place fees on those purchasing imports and producing exports as those goods pass through their States. We know from past experience that this would happen. Due to that and human nature, there would be endless resentments, which would likely result in severe disruptions of domestic peace. Anybody looking at this objectively can see that the individual States' desire to collect revenue from their non-commercial neighboring States in any way is both unwise and unfair. It would motivate the unfairly treated States to find longer routes to import their foreign goods to avoid going through those States out of resentment and for their own financial benefit. But the calm voice of reason looking out for the long-term greater good is too often drowned out by those clamoring impatiently and greedily for immediate and unbridled financial gain. The need for having a federal authority overseeing the trade between individual States has been illustrated by the experiences of other countries. In Switzerland, where the cantons are only loosely united, cantons must allow merchandise from other cantons to pass through without charging a toll. Germany has a law that individual states may not collect tolls or customs on bridges, rivers, or roads, without the consent of the emperor, although a quote from a previous Federalist Paper suggests that Germany has not complied with their own rules, and it has resulted in the exact problems that we hope to avoid. The Netherlands doesn't allow its members to impose fees that are detrimental to their neighbors without permission from the rest of the country.
The Constitution corrects two ways that The Articles of Confederation dealt with commerce with the Indians that were unclear and contradictory. In the Articles, the authority is limited to Indians rather than to members of any of the States, and that authority is not allowed to violate or infringe on any State 's authority to enforce their own laws. The problem is, it hasn't been determined which Indians are members of any State. That is a perplexing question that has not yet been settled, and is still being hotly debated in federal meetings. What about Indians that live in a State, but are not considered citizens of that State? How can a federal power under the Article's policy regulate trade without violating that State's own laws? Such a confusing dilemma is baffling. This is not the only instance where the Articles of Confederation have tried to regulate an impossible situation. Trying to reconcile the partial sovereignty of the Federal Government with the complete sovereignty of each State is like trying to solve a mathematical equation by removing part of it while leaving the equation whole.
The only comment that needs to be made about minting coins and determining their value and the value of foreign money is by remarking that, in the case of foreign money, the Constitution has included a provision that was left out of the Articles. The Articles only allow Congress to regulate coins that have been minted under their authority, or under the authority of the States. It's apparent that proposing a uniform value of our current coins will be undermined if the value of foreign money is determined by each individual State. Deciding the appropriate punishment for counterfeiting money and securities of the United States is appropriate for the governing authority responsible for determining the value of both. Setting the standards of weights and measures was already in the Articles of Confederation, and, as before, it makes sense to leave that to the governing authority that regulates the minting and value of coins.
The various laws about naturalizing immigrants from state to state has been a well-known flaw in our system for a long time, and leaves room for complicated and tricky questions. In the Articles of Confederation, the fourth article says that "the free INHABITANTS of each State, not including beggars, rambling vagrants, and criminals running from the law, are entitled to the same privileges and immunities that free CITIZENS have in the States; and the PEOPLE of each State are entitled to all the privileges of trade and commercial business," etc. This is a remarkably inconsistent confusion of language. It uses three different terms -- inhabitants, citizens, people -- and is vague about "the same privileges and immunities." It's unclear what is meant by "all the privileges of trade and commercial business." It sounds like the free INHABITANTS, even if they're not citizens, are entitled to the same privileges and immunities as free CITIZENS -- in fact, they may be entitled to more privileges than they would back in their own state! A State, therefore -- and possibly every State -- will find it necessary to grant the rights of citizenship [which infers US citizenship] not only to those that it defines as citizens, but any person who happens to live there. If the term "inhabitants" was defined to limit its meaning to "citizens," that would help clear things up a little, but not totally. It still allows States the improper authority to naturalize immigrants in every other State. One State allows anyone who lives there for a certain amount of time to be granted citizenship, while a second State has additional requirements. Therefore, an immigrant who may not legally qualify for rights in the second State, could claim his citizenship in the first State in order to qualify for rights in the second one. This makes the laws of one State superior to the laws of a second State, even within the boundaries of the second State! It's a lucky accident that nothing yet has happened to draw attention to this awkward situation. Some States have laws that prevent certain groups of people who caused trouble to gain citizenship, or to even live there. What if these people could go to a second State, claim citizenship based on living in the first State for awhile, and then demand their rights in the second State based on that? There would be legal consequences, and even worse potential consequences if the law wasn't clarified. The new Constitution has made provisions to prevent these consequences and others that could have arisen from this flaw in the Articles of Confederation by authorizing the federal government to establish uniform laws of citizenship throughout the United States.
Establishing uniform laws of bankrupcy is closely related to regulating commerce. It will prevent fraud among individuals who live or have property in different States, so it's unlikely that anyone will question the usefulness of that clause. The general laws about verifying public records and judicial proceedings in each State, and how much effect they will have in other States, is obviously a great improvement over the way the Articles of Confederation treated the subject. The meaning of the second part (how much effect they will have in other States) is left vague, and how it ends up being interpreted won't make a big difference. The real authority that this establishes is a convenient tool of justice that will be especially helpful between States that border each other, where manipulative interpretations by the other State can change the meaning of documents at any stage of legal proceedings. And, finally, the authority to build roads between post offices is a harmless clause and, if managed wisely, will create more convenience for the public.
Anything that helps the various States in their dealings with each other is worth the public's concern.
Signed, "Publius Valerius Publicola."
Paraphrased by Leslie Noelani Laurio, April 2020
All Federalist Paper paraphrases
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