Federalist 44 Paraphrased
Federalist No. 44 - Powers Given to the Federal Government paraphrased into modern English
by James Madson, Jan 25, 1788
To: the People of the State of New York,
A fifth category of provisions that gives authority to the federal government restricts some of the States' authority. They are:
1. 'No state is allowed to enter into any treaty or alliance with a foreign country. No state is allowed to give Letters of Marque and Reprisal, make their own money, write promissory notes in order to buy on credit, take anything but silver and gold in payment of debts, pass a Bill of Attainder or ex post facto law, or any law that breaks a contract, and they may not bestow any titles of nobility.' [Article 1, Section 10]
Prohibiting States from making treaties, alliances, and confederations is already part of the existing Articles of Confederation, and for obvious reasons, was also included in the new Constitution. The part prohibiting Letters of Marque and Reprisal was also in the Articles of Confederation, but a bit expanded in the Constitution. In the Articles, States could give Letters of Marque and Reprisal after war was declared; in the Constitution, Letters of Marque and Reprisal can only be given by the federal government, both after war has been declared and before. This is consistent with all the other points related to dealing with foreign powers. Since the federal government would be held responsible for any action involving foreign countries, it makes sense that the federal government should have this authority.
The right to coin money, which the new Constitution has taken away from the States, was previously allowed to States in the Articles of Confederation while also authorizing Congress to coin money because of an exception that gave Congress the exclusive right to regulate the metal alloy and determine the value of the coins. The new Constitution is an improvement here as well. As long as Congress sets the value, the States right to make coins doesn't do anything but multiply the number of expensive mints all over the country and result in a situation where there are various styles and weights of the coins in circulation. Having different kinds of coins defeats the purpose of consolidating coinage under one centralized authority, and having multiple mints run by different States could make it inconvenient for gold and silver coins to be brought to the central mint to be re-coined. It makes more sense for local mints to be operated under the authority of the federal government.
The addition of a ban on Bills of Credit [short term government loans, such as paper money] must be a welcome change to every U.S. citizen, depending on how much he loves justice and understands the real source of public prosperity. In the period of peace since the Revolutionary War, paper money has had a ruinous effect on the essential confidence between individuals, on the essential confidence in the public councils, on the hard work and morals of the citizens, and on the integrity of republican [representative] government itself. It has resulted in enormous debt against the States who have unwisely issued Bills of Credit -- debt that won't be paid back for a long time. Or, rather, it has resulted in an accumulation of guilt, and the only way to assuage that guilt is to voluntarily, for the sake of justice, give up the power that allowed such Bills to be issued in the first place. In addition to these compelling reasons, I will mention that the same reasons why States should not have the power to regulate coins confirm that States should not have the authority to substitute paper money in the place of coins. If every State was allowed to regulate coins, we might have as many different kinds of currency as we have States. That would complicate business between States. If a State were to alter the value of its coins, that could harm citizens of other States financially and create resentment between States. It could even affect citizens of other countries, and cause the entire United States to be discredited and involved in a dispute over the mistake of a single State. All of these potential problems are just as liable to happen over States issuing paper money as making their own coins. And having the authority to use anything other than gold and silver to pay debts is also no longer allowed for the States for the same reasons States aren't allowed to issue paper money.
Bills of attainder [which declare a person guilty without a trial], ex post facto [retroactive] laws, and 'private relief' laws that excuse privileged people from paying their debts -- all of these go against the Social Contract's first principle [governments get their power from the consent of the governed], as well as every other principle of reasonable law. The first two [Bills of attainder, ex post facto laws] are specifically banned in the declarations that serve as the prefix for some State constitutions, and in the State constitutions where they aren't mentioned by name, the spirit and sphere of their charters bans them. Even so, our experience shows us it is necessary to provide even clearer constraints against these threats. Thus, it's very appropriate that a constitutional safeguard that protects personal security and private rights was added. I believe this is what the private citizens desired. The clear-headed people of America are tired of the ever-changing policies that have guided our public councils. They have been annoyed and exasperated to see sudden changes and interfering laws in situations that affect individual rights because of the designs of ambitious and powerful schemers. These legislative changes become traps to the part of the community that works harder, but is kept in the dark when such decisions are made. The people have seen that one interference from the law tends to be the first link in a long chain of violations, as each breach results in the need for another encroachment. They believe -- and rightly so -- that we need a thorough reform that will eliminate such tactics from influencing our laws as well as arouse general carefulness and productive activity, and provide a steady direction for the business of society. Banning titles of nobility was copied directly from the Articles of Confederation and needs no further comment.
2. "States may not collect taxes or duties on imports or exports above what they need to pay for enforcing inspection laws, unless Congress approves. Any taxes or duties they collect on behalf of the U.S. Government must be given to the U.S. Treasury. All laws regarding their import and export taxes and duties can be revised and controlled by Congress. Unless Congress approves, States may not charge duties on foreign ships, maintain an army or navy in peace time, negotiate agreements with other states or foreign countries, or wage war unless they are actually invaded or in such urgent danger that immediate action is necessary."
Limiting the authority of the States over imports and exports makes sense when you consider the reasons for putting the federal government in charge of regulating trade. There's no need to say anything more except to mention that the way this limitation is described makes it sound like it will, first of all, allow the States to have a reasonable amount of judgment to make their imports and exports convenient, while allowing the federal government to have enough control to prevent the States from abusing their authority. The rest of the clause is either so obvious, or has already been sufficiently explained, that it's unnecessary to say anything more.
The sixth and last category is made up of the various powers and means needed to accomplish the rest.
1. In the sixth category, the first is the power to 'make whatever laws are reasonably needed to carry out the 18 clauses stated here, and other powers granted to them in the Constitution, or powers granted to any Government Department or Officer.' [Article 1, sec 8, clause 18]
This part of the Constitution has been accused of being more excessive than any other part. But after looking more closely, no other part is more secure. If Congress doesn't have this authority, the whole Constitution becomes no more than a dead letter. Those who object to this clause being part of the Constitution must mean that the wording is not suitable. But do they have an alternate wording that would be better?
There are four other possible ways that the Constitution could have handled this subject. They could have copied Article 2 of the current Articles of Confederation. [Article 2: "Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."] That would have prohibited the federal government from using any authority that wasn't expressly specified in the Constitution. They could have made a list naming exactly which powers 'whatever laws are reasonably needed' refers to, or they could have listed which powers it doesn't refer to. Or they could have said nothing and left it open to decide how to interpret 'whatever laws are reasonably needed.'
If the men who wrote the Constitution had done the first method of copying Article from the Articles of Confederation, it's inevitable that Congress would continually be frustrated and held to a rigid perception of "expressly delegated" so that they would have no real authority at all. We've already seen that happen with the current Articles of Confederation. Or it could have been interpreted so loosely that the restriction would lose its intended force [and the federal government would usurp more and more power from the States]. It would be easy to show that no significant authority that the Articles of Confederation gave to Congress can be put into use without resorting to theoretical interpretation. Since the Constitution has expanded the authority given to Congress, the government, as it attempts to apply that authority, would object to the fourth option of saying nothing and betraying the public interest, or violating the Constitution by taking on authority that wasn't specifically written in the Constitution--even when it was necessary and appropriate.
If the men writing the Constitution had tried to list all of the powers that are 'reasonably needed to carry out the 18 clauses,' they would have had to write entire books of rules about every subject that the Constitution might be involved with, not just for the present time, but for whatever changes might come in the future, because every time a general authority is used in a new way, the specific powers that are used to achieve the intended purpose would need to be specifically described for that purpose.
It would have been just as bewildering to try to list the specific powers that couldn't be applied in order to implement the general authority, and anything they unintentionally left out would be interpreted as a definite granting of authority. If they had tried to avoid this by listing some exceptions and describing the rest as 'not reasonably needed,' the list would only include a few exceptions, and those few exceptions would not be likely to be assumed or tolerated since the list would obviously include those items that aren't as necessary and appropriate. And the unnecessary and inappropriate powers that were left off the list would be less urgently disapproved of than if a partial list had never been made.
If the Constitution had said nothing about this, then it's inevitable that all the specific powers needed to carry out the general powers would have defaulted to the federal government by unquestionable inference. It's a truism clearly proven in law, or in reason, that any time a certain end is called for, the means to accomplish that end will be justified. Any time a general power is given to accomplish a particular thing, whatever incidental powers are needed to get the job done will be included. So, if the Constitution had said nothing, then every criticism against the Constitution could potentially be brought up in opposition. By remaining silent on this, the Constitution would have left an opening for critics to challenge the necessary authority of the federal government, and caused a great inconvenience during critical circumstances.
You might wonder, what will happen if Congress misinterprets that part of the Constitution and uses powers that were not intended? The same thing would happen as if they had misinterpreted or expanded any other power given to them, or as if their general power was scaled down to specific powers and any of those was violated. It would be the same as if State legislatures violated their own constitutional powers. In the first case, if Congress tried to usurp more power than was given to them, it would depend on the President and the Supreme Court to clarify and challenge the actions of Congress. As a last resort, the people themselves would have to solve the problem by electing more faithful representatives and cancel out the acts of the usurpers. In fact, the people's vote can be trusted to prevent unconstitutional actions in the federal government more so than in State governments because of this: any act of usurpation in the federal government will invade the rights of the States. The States will detect the change and sound the alarm to the people, applying their local influence to vote better people as federal representatives. There is no intermediate group of officials standing in between the State politicians and citizens who are vigilant about noticing changes in how their State representatives behave, so violations of State constitutions are more likely to remain unnoticed and uncorrected.
2: 'This Constitution and any laws that may be made according to this Constitution, and any treaties that are made under the authority of the United States, will be the highest law of the land, and judges in every state will be bound to abide by them, overriding any state laws or treaties.' [from Article VI of the Constitution]
The reckless intensity of those who criticize the new Constitution has even driven them to attack this part, although the Constitution would have been obviously lacking without it. If anyone needs to be convinced of that, just imagine if the Constitution included a clause that left State constitutions superior to the federal government.
State constitutions give their State legislatures absolute sovereignty, except in specific cases outlined in the Articles of Confederation. The Constitution gives additional authorities to the federal government than those that were in the Articles of Confederation, but if States were given absolute sovereignty, those authorities would be null and void. The new Congress would have been reduced to the same weak condition as they are under our Articles of Confederation.
Secondly, some State constitutions don't even officially recognize the authority that exists in the Articles of Confederation. If the Constitution included a clause giving the States absolute sovereignty, those States would challenge every federal authority listed in the Constitution.
Third, since State constitutions are different from one another, there might be an instance when a treaty or national law that's important to all the States could interfere with the constitutions of some States, but not others. That means the treaty or law would only be valid in some States, but would have no effect in others.
And finally, We will have shown the world a system of government turned upside down and reversing the foundational principles of all good government. The smaller parts would have sovereignty over the nation as a whole, like a monster whose head is ruled by its arms and legs.
3. 'Senators, Representatives, members of state legislatures, and all executive officers and judges, whether of the United States or of any individual state, must take an oath promising to abide by this Constitution.' [from Article VI of the Constitution]
Some have wondered why members of State legislatures should be required to support the federal Constitution, but federal legislatures aren't required to support State constitutions.
There are several reasons. I'll just mention one, which is obvious and compelling. Federal legislators will have no authority to administer State constitutions. But members and officials of State governments will have an essential role in administering the federal Constitution: the State legislatures will have a crucial role in electing the US President and Senate. Elections of US Representatives will also depend on the States, and will probably always be conducted by State officials according to State laws.
4. Other provisions that make the federal powers more efficient are related to the executive [president] and judiciary branches. But these will be discussed elsewhere, so I'll pass over them for now.
We have now discussed in detail all the clauses in the proposed Constitution that delegate power to the federal government, and we have to conclude that all of those powers are necessary and proper in order to accomplish the purpose of the Union of States. The question of whether to approve of giving the federal government these powers leads to another question: should a government that is adequate for the demands of the Union be set up, or, in other words, should we preserve the Union or not?
Signed, "Publius Valerius Publicola."
Paraphrased by Leslie Noelani Laurio, May 2020
All Federalist Paper Paraphrases
by James Madson, Jan 25, 1788
To: the People of the State of New York,
A fifth category of provisions that gives authority to the federal government restricts some of the States' authority. They are:
1. 'No state is allowed to enter into any treaty or alliance with a foreign country. No state is allowed to give Letters of Marque and Reprisal, make their own money, write promissory notes in order to buy on credit, take anything but silver and gold in payment of debts, pass a Bill of Attainder or ex post facto law, or any law that breaks a contract, and they may not bestow any titles of nobility.' [Article 1, Section 10]
Prohibiting States from making treaties, alliances, and confederations is already part of the existing Articles of Confederation, and for obvious reasons, was also included in the new Constitution. The part prohibiting Letters of Marque and Reprisal was also in the Articles of Confederation, but a bit expanded in the Constitution. In the Articles, States could give Letters of Marque and Reprisal after war was declared; in the Constitution, Letters of Marque and Reprisal can only be given by the federal government, both after war has been declared and before. This is consistent with all the other points related to dealing with foreign powers. Since the federal government would be held responsible for any action involving foreign countries, it makes sense that the federal government should have this authority.
The right to coin money, which the new Constitution has taken away from the States, was previously allowed to States in the Articles of Confederation while also authorizing Congress to coin money because of an exception that gave Congress the exclusive right to regulate the metal alloy and determine the value of the coins. The new Constitution is an improvement here as well. As long as Congress sets the value, the States right to make coins doesn't do anything but multiply the number of expensive mints all over the country and result in a situation where there are various styles and weights of the coins in circulation. Having different kinds of coins defeats the purpose of consolidating coinage under one centralized authority, and having multiple mints run by different States could make it inconvenient for gold and silver coins to be brought to the central mint to be re-coined. It makes more sense for local mints to be operated under the authority of the federal government.
The addition of a ban on Bills of Credit [short term government loans, such as paper money] must be a welcome change to every U.S. citizen, depending on how much he loves justice and understands the real source of public prosperity. In the period of peace since the Revolutionary War, paper money has had a ruinous effect on the essential confidence between individuals, on the essential confidence in the public councils, on the hard work and morals of the citizens, and on the integrity of republican [representative] government itself. It has resulted in enormous debt against the States who have unwisely issued Bills of Credit -- debt that won't be paid back for a long time. Or, rather, it has resulted in an accumulation of guilt, and the only way to assuage that guilt is to voluntarily, for the sake of justice, give up the power that allowed such Bills to be issued in the first place. In addition to these compelling reasons, I will mention that the same reasons why States should not have the power to regulate coins confirm that States should not have the authority to substitute paper money in the place of coins. If every State was allowed to regulate coins, we might have as many different kinds of currency as we have States. That would complicate business between States. If a State were to alter the value of its coins, that could harm citizens of other States financially and create resentment between States. It could even affect citizens of other countries, and cause the entire United States to be discredited and involved in a dispute over the mistake of a single State. All of these potential problems are just as liable to happen over States issuing paper money as making their own coins. And having the authority to use anything other than gold and silver to pay debts is also no longer allowed for the States for the same reasons States aren't allowed to issue paper money.
Bills of attainder [which declare a person guilty without a trial], ex post facto [retroactive] laws, and 'private relief' laws that excuse privileged people from paying their debts -- all of these go against the Social Contract's first principle [governments get their power from the consent of the governed], as well as every other principle of reasonable law. The first two [Bills of attainder, ex post facto laws] are specifically banned in the declarations that serve as the prefix for some State constitutions, and in the State constitutions where they aren't mentioned by name, the spirit and sphere of their charters bans them. Even so, our experience shows us it is necessary to provide even clearer constraints against these threats. Thus, it's very appropriate that a constitutional safeguard that protects personal security and private rights was added. I believe this is what the private citizens desired. The clear-headed people of America are tired of the ever-changing policies that have guided our public councils. They have been annoyed and exasperated to see sudden changes and interfering laws in situations that affect individual rights because of the designs of ambitious and powerful schemers. These legislative changes become traps to the part of the community that works harder, but is kept in the dark when such decisions are made. The people have seen that one interference from the law tends to be the first link in a long chain of violations, as each breach results in the need for another encroachment. They believe -- and rightly so -- that we need a thorough reform that will eliminate such tactics from influencing our laws as well as arouse general carefulness and productive activity, and provide a steady direction for the business of society. Banning titles of nobility was copied directly from the Articles of Confederation and needs no further comment.
2. "States may not collect taxes or duties on imports or exports above what they need to pay for enforcing inspection laws, unless Congress approves. Any taxes or duties they collect on behalf of the U.S. Government must be given to the U.S. Treasury. All laws regarding their import and export taxes and duties can be revised and controlled by Congress. Unless Congress approves, States may not charge duties on foreign ships, maintain an army or navy in peace time, negotiate agreements with other states or foreign countries, or wage war unless they are actually invaded or in such urgent danger that immediate action is necessary."
Limiting the authority of the States over imports and exports makes sense when you consider the reasons for putting the federal government in charge of regulating trade. There's no need to say anything more except to mention that the way this limitation is described makes it sound like it will, first of all, allow the States to have a reasonable amount of judgment to make their imports and exports convenient, while allowing the federal government to have enough control to prevent the States from abusing their authority. The rest of the clause is either so obvious, or has already been sufficiently explained, that it's unnecessary to say anything more.
The sixth and last category is made up of the various powers and means needed to accomplish the rest.
1. In the sixth category, the first is the power to 'make whatever laws are reasonably needed to carry out the 18 clauses stated here, and other powers granted to them in the Constitution, or powers granted to any Government Department or Officer.' [Article 1, sec 8, clause 18]
This part of the Constitution has been accused of being more excessive than any other part. But after looking more closely, no other part is more secure. If Congress doesn't have this authority, the whole Constitution becomes no more than a dead letter. Those who object to this clause being part of the Constitution must mean that the wording is not suitable. But do they have an alternate wording that would be better?
There are four other possible ways that the Constitution could have handled this subject. They could have copied Article 2 of the current Articles of Confederation. [Article 2: "Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."] That would have prohibited the federal government from using any authority that wasn't expressly specified in the Constitution. They could have made a list naming exactly which powers 'whatever laws are reasonably needed' refers to, or they could have listed which powers it doesn't refer to. Or they could have said nothing and left it open to decide how to interpret 'whatever laws are reasonably needed.'
If the men who wrote the Constitution had done the first method of copying Article from the Articles of Confederation, it's inevitable that Congress would continually be frustrated and held to a rigid perception of "expressly delegated" so that they would have no real authority at all. We've already seen that happen with the current Articles of Confederation. Or it could have been interpreted so loosely that the restriction would lose its intended force [and the federal government would usurp more and more power from the States]. It would be easy to show that no significant authority that the Articles of Confederation gave to Congress can be put into use without resorting to theoretical interpretation. Since the Constitution has expanded the authority given to Congress, the government, as it attempts to apply that authority, would object to the fourth option of saying nothing and betraying the public interest, or violating the Constitution by taking on authority that wasn't specifically written in the Constitution--even when it was necessary and appropriate.
If the men writing the Constitution had tried to list all of the powers that are 'reasonably needed to carry out the 18 clauses,' they would have had to write entire books of rules about every subject that the Constitution might be involved with, not just for the present time, but for whatever changes might come in the future, because every time a general authority is used in a new way, the specific powers that are used to achieve the intended purpose would need to be specifically described for that purpose.
It would have been just as bewildering to try to list the specific powers that couldn't be applied in order to implement the general authority, and anything they unintentionally left out would be interpreted as a definite granting of authority. If they had tried to avoid this by listing some exceptions and describing the rest as 'not reasonably needed,' the list would only include a few exceptions, and those few exceptions would not be likely to be assumed or tolerated since the list would obviously include those items that aren't as necessary and appropriate. And the unnecessary and inappropriate powers that were left off the list would be less urgently disapproved of than if a partial list had never been made.
If the Constitution had said nothing about this, then it's inevitable that all the specific powers needed to carry out the general powers would have defaulted to the federal government by unquestionable inference. It's a truism clearly proven in law, or in reason, that any time a certain end is called for, the means to accomplish that end will be justified. Any time a general power is given to accomplish a particular thing, whatever incidental powers are needed to get the job done will be included. So, if the Constitution had said nothing, then every criticism against the Constitution could potentially be brought up in opposition. By remaining silent on this, the Constitution would have left an opening for critics to challenge the necessary authority of the federal government, and caused a great inconvenience during critical circumstances.
You might wonder, what will happen if Congress misinterprets that part of the Constitution and uses powers that were not intended? The same thing would happen as if they had misinterpreted or expanded any other power given to them, or as if their general power was scaled down to specific powers and any of those was violated. It would be the same as if State legislatures violated their own constitutional powers. In the first case, if Congress tried to usurp more power than was given to them, it would depend on the President and the Supreme Court to clarify and challenge the actions of Congress. As a last resort, the people themselves would have to solve the problem by electing more faithful representatives and cancel out the acts of the usurpers. In fact, the people's vote can be trusted to prevent unconstitutional actions in the federal government more so than in State governments because of this: any act of usurpation in the federal government will invade the rights of the States. The States will detect the change and sound the alarm to the people, applying their local influence to vote better people as federal representatives. There is no intermediate group of officials standing in between the State politicians and citizens who are vigilant about noticing changes in how their State representatives behave, so violations of State constitutions are more likely to remain unnoticed and uncorrected.
2: 'This Constitution and any laws that may be made according to this Constitution, and any treaties that are made under the authority of the United States, will be the highest law of the land, and judges in every state will be bound to abide by them, overriding any state laws or treaties.' [from Article VI of the Constitution]
The reckless intensity of those who criticize the new Constitution has even driven them to attack this part, although the Constitution would have been obviously lacking without it. If anyone needs to be convinced of that, just imagine if the Constitution included a clause that left State constitutions superior to the federal government.
State constitutions give their State legislatures absolute sovereignty, except in specific cases outlined in the Articles of Confederation. The Constitution gives additional authorities to the federal government than those that were in the Articles of Confederation, but if States were given absolute sovereignty, those authorities would be null and void. The new Congress would have been reduced to the same weak condition as they are under our Articles of Confederation.
Secondly, some State constitutions don't even officially recognize the authority that exists in the Articles of Confederation. If the Constitution included a clause giving the States absolute sovereignty, those States would challenge every federal authority listed in the Constitution.
Third, since State constitutions are different from one another, there might be an instance when a treaty or national law that's important to all the States could interfere with the constitutions of some States, but not others. That means the treaty or law would only be valid in some States, but would have no effect in others.
And finally, We will have shown the world a system of government turned upside down and reversing the foundational principles of all good government. The smaller parts would have sovereignty over the nation as a whole, like a monster whose head is ruled by its arms and legs.
3. 'Senators, Representatives, members of state legislatures, and all executive officers and judges, whether of the United States or of any individual state, must take an oath promising to abide by this Constitution.' [from Article VI of the Constitution]
Some have wondered why members of State legislatures should be required to support the federal Constitution, but federal legislatures aren't required to support State constitutions.
There are several reasons. I'll just mention one, which is obvious and compelling. Federal legislators will have no authority to administer State constitutions. But members and officials of State governments will have an essential role in administering the federal Constitution: the State legislatures will have a crucial role in electing the US President and Senate. Elections of US Representatives will also depend on the States, and will probably always be conducted by State officials according to State laws.
4. Other provisions that make the federal powers more efficient are related to the executive [president] and judiciary branches. But these will be discussed elsewhere, so I'll pass over them for now.
We have now discussed in detail all the clauses in the proposed Constitution that delegate power to the federal government, and we have to conclude that all of those powers are necessary and proper in order to accomplish the purpose of the Union of States. The question of whether to approve of giving the federal government these powers leads to another question: should a government that is adequate for the demands of the Union be set up, or, in other words, should we preserve the Union or not?
Signed, "Publius Valerius Publicola."
Paraphrased by Leslie Noelani Laurio, May 2020
All Federalist Paper Paraphrases
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