FReeper Book Club: The Debate over the Constitution, Federalist #41

Madison examines closely the issue of national security and the means of funding the organs of national security.

² The Constitution proposed by the Convention may be considered under two general points of view.

³ The first relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the states.

⁴ The second, to the particular structure of the government and the distribution of this power among its several branches.

⁶ Is the aggregate power of the general government greater than ought to have been vested in it?

⁸ 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.

⁹ 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.

¹⁰ This method of handling the subject cannot impose on the good sense of the people of America.

¹¹ 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 mis-thinking, 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.

¹² 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.

¹³ 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:

¹⁴ 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.

¹⁵ Security against foreign danger is one of the primitive objects of civil society.

¹⁷ The powers requisite for attaining it must be effectually confided to the federal councils.

²⁰ It would be superfluous, therefore, to enter into a proof of the affirmative.

²⁵ 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?

²⁶ The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place.

²⁷ The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place.

²⁸ With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense?

²⁹ 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.

³⁰ 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?

³¹ The means of security can only be regulated by the means and the danger of attack.

³³ It is in vain to oppose constitutional barriers to the impulse of self-preservation.

³⁴ 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.

³⁵ 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.

³⁶ The Fifteenth Century was the unhappy epoch of military establishments in the time of peace.

³⁹ Had the example not been followed by other nations, all Europe must long ago have worn the chains of a universal monarch.

⁴⁰ Were every nation except France now to disband its peace establishments, the same event might follow.

⁴¹ The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the world.

⁴² 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.

⁴³ A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision.

⁴⁷ A wise nation will combine all these considerations, and [while] 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.

⁴⁸ The clearest marks of this prudence are stamped on the proposed Constitution.

⁴⁹ The Union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous.

⁵⁰ 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.

⁵¹ It was remarked on a former occasion that the want of this pretext had saved the liberties of one nation in Europe.

⁵² 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.

⁵³ The distance of the United States from the powerful nations of the world gives them the same happy security.

⁵⁴ A dangerous establishment can never be necessary or plausible so long as they continue a united people.

⁵⁵ But let it never for a moment be forgotten that they are indebted for this advantage to the Union alone.

⁵⁷ 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.

⁵⁸ The example will be followed here from the same motives which produced universal imitation there.

⁵⁹ 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.

⁶⁰ It will present liberty everywhere crushed between standing armies and perpetual taxes.

⁶¹ The fortunes of disunited America will be even more disastrous than those of Europe.

⁶³ 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.

⁶⁴ In America the miseries springing from her internal jealousies, contentions and wars would form a part only of her lot.

⁶⁵ 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.

⁶⁶ This picture of the consequences of disunion cannot be too highly colored or too often exhibited.

⁶⁷ 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.

⁶⁸ 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.

⁷⁰ I will not repeat here the observations which I flatter myself have placed this subject in a just and satisfactory light.

⁷¹ 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.

⁷² 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.

⁷³ This is the form in which the comparison is usually stated to the public, but is it a just form?

⁷⁵ Does the British Constitution restrain the parliamentary discretion to one year?

⁷⁷ 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.

⁷⁸ 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.

⁷⁹ 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?

⁸¹ Of this truth, the management of the opposition to the federal government is an unvaried exemplification.

⁸² 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.

⁸³ 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.

⁸⁴ 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.

⁸⁵ 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.

⁸⁶ In this respect our situation bears another likeness to the insular advantage of Great Britain.

⁸⁷ 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.

⁸⁸ 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.

⁸⁹ 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.

⁹² The state itself is penetrated by a large navigable river for more than fifty leagues.

⁹³ 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 compliance with the dictates of a foreign enemy or even with the rapacious demands of pirates and barbarians.

⁹⁴ 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.

⁹⁵ 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.

⁹⁶ The power of regulating and calling forth the militia has been already sufficiently vindicated and explained.

⁹⁷ 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.

⁹⁸ 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.

⁹⁹ 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.

¹⁰⁰ 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.

¹⁰¹ 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.

¹⁰² As long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply.

¹⁰³ 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.

¹⁰⁴ 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.

¹⁰⁵ A system of government meant for duration ought to contemplate these revolutions and be able to accommodate itself to them.

¹⁰⁶ 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.

¹⁰⁷ 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.

¹⁰⁸ No stronger proof could be given of the distress under which these writers labor for objections than their stooping to such a misconstruction.

¹⁰⁹ 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.

¹¹⁰ 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.”

¹¹¹ 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?

¹¹² 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?

¹¹³ 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?

¹¹⁴ 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.

¹¹⁵ 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.

¹¹⁶ 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.

¹¹⁷ 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.”

¹¹⁸ 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.

¹²⁰ 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.

¹²¹ 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?

¹²² 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.

Here Madison offers an outline of his analysis of the proposed Constitution that will follow in the ensuing three essays. He applies it to the fundamental matter of national security. His analytical system is stated briefly at 3 and 4; it consists of two criteria.

³ The first relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the states.

⁴ The second, to the particular structure of the government and the distribution of this power among its several branches.

There are two determinations to be made within the first criterion regarding the power granted to the general – federal – government: is that power adequate to the need, and is it extensive enough to be dangerous (5)? Madison and Hamilton have dwelt at some length on the fact that political power is not granted for its own sake, but to answer specific national needs, and inasmuch as certain of those needs reflect an unbounded threat to the nation, the power to address them must itself be prodigious and not as sharply defined as their opponents would prefer. This is no theoretical model, but a practical plan of government. It contains power, it contains compromise, and because of that, it contains hazard as well as potential benefit.

¹¹ …in every political institution a power to advance the public happiness involves a discretion which may be misapplied and abused.

¹² …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.

At 13 there is an insight as to precisely what the Constitution’s principal architect distilled from four months of often acrimonious debate concerning what this new federal government ought to be doing. The enumerated powers fall into the following six categories:

The balance of these essays will be spent in examining the above powers with respect to the listed criteria. It is, from the analytical point of view, an admirably precise and focused model.

Madison begins with the topic of security against foreign danger, a fundamental charge of any government, and as such, the discussion of the first criterion, the extent of the power granted to meet this need, will be brief. It carries within it two sub-headings: the power of declaring war (18), and the power of raising armies and equipping fleets (22). Within the second of these lurks the thorny question of standing armies in time of peace, a topic which will take up the bulk of this essay.

With respect to the extent of the powers granted to the federal government to meet this need, there is the clearest case in favor of Hamilton’s sometimes ominous insistence on the imprudence of any attempt to limit enumerated powers. Madison repeats his friend’s argument nearly word for word.

²⁶ The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place…

²⁷ …so obvious and conclusive as scarcely to justify such a discussion in any place.

Nevertheless, a discussion there will be, for the issue of a standing army under federal control is one of the most persistent and alarming objections the anti-Federalists had voiced against the adoption of the Constitution. Madison meets the objections head on.

³⁰ 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?

That is obviously impossible, for other countries have their own standing armies, and their very existence mandates an answer from their potential adversaries (35). It is a long-standing situation, Madison states, its modern occurrence having begun in the 15th Century (36) by Charles VII of France (37), whose example had to be followed by other nations (39) lest all of Europe come under one crown.

The historically minded reader may think this a bit hard on Charles, whose lifetime spanned the last half of the Hundred Years’ War, and who knew very little of times of peace. This was Joan of Arc’s beloved Dauphin Charles, the one who reclaimed Paris from the English while letting them murder the young woman who was the principal reason he wore the crown in the first place. To him a standing army was a fact of life and its absence the likely termination of it. Nevertheless, Madison admits the danger. A standing army was both the guarantor of Rome’s freedom (41) and the cause of that freedom’s loss (42).

⁴³ A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision.

To conclude the analysis by the first criterion: as this power is necessary, how best to safeguard it from abuse? The answer lies in the structure of the government, which is Madison’s second criterion. Congress holds the purse strings and must review the continuance of funding for a standing army every two years (68). It is a power best kept in federal hands, lest it fall into the hands of others.

⁵⁷ 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.

⁸³ … 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…

Similar considerations apply to the establishment of a navy. Madison points out to his New York audience that New York is, behind Maryland and Virginia, peculiarly vulnerable to the depredations of a foreign enemy or “even with the rapacious demands of pirates and barbarians” (93). It was no exaggeration. The Barbary pirates were already attacking American commerce and demanding protection money. Armed raids or even a hostile encampment on Manhattan Island were nothing that the rest of the world had not already experienced.

The power of “levying and borrowing money” in support of the national defense is, concludes Madison, quite on par with that of the power of regulating and calling forth the militia (97). Returning to his theme of the impropriety of attempting to limit this power, he challenges the contention that it ought to be restricted to importation taxes with remarkable foresight. The country will not, Madison states, forever be an importing nation.

¹⁰³ 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.

¹⁰⁵ A system of government meant for duration ought to contemplate these revolutions and be able to accommodate itself to them.

It is an echo of Hamilton in Federalist #11. In fact, the Industrial Revolution was in its nascent stages, the steam engine having been patented in 1775, the spinning jenny some five years earlier. That would affect quite a bit more than tax structure in the new nation; it would transform it utterly in the space of some eighty years.

Using the topic of taxation as a pivot, Madison veers suddenly from the discussion of national defense to the potential for abuse of the means of funding it. The power “to lay and collect taxes, duties, imposts…and provide for the common defense and the general welfare of the United States” is, according to his opponents, impossibly broad. Nonsense, says Madison, a “specification of the objects alluded to” by the phrase immediately follows (111). It isn’t as subject to abuse as his opponents have claimed, especially when formulated as wildly as 110.

Singular but not unimaginable. This gentle derision is one indication of how far the enumerated powers within the Constitution actually have been stretched since Madison penned them. In fact, some of the pretexts used later by Congress to legislate in all of these areas are far slimmer than the General Welfare Clause.

The reader is suddenly disconcerted by the abrupt ending of the essay so shortly after Madison has entered another topic entirely. One suspects that the constraints of time or of column-inches in the newspaper had been reached. Madison will pick the matter up again in the succeeding installment.

I don’t know. On one hand I agree with much of this as there really can be no constitutional limits to the military power of a country. On the other hand I have a hard time reading much of Madison’s writing on the purity of his reasoning given his role in the silly War of 1812. There were some good reasons for the war but some silly reasons too like our misunderstanding of Napoleon’s statements and our own diplomatic miscommunications.

The Battle of New Orleans is emblematic of the war of 1812, i.e. fought a month after the war was over.

We’ve struggled with this problem of how to constitutionally limit a national government’s military power for many years with the War Powers Act being perhaps the dumbest thing we’ve come up with. In the end, I think the only solution is a well informed public more inclined to be reluctant than to ask for war.

Well, we’ve had some good discussion on these threads. I know I enjoy pontificating. I wonder if when we post, if we should post back to the whole ping list. That way the pot might be stirred a bit more.

What I got reading through the constitution, early American history and the federalist papers this past year is that as much as we on Free Republic might want to think of our government as a federal government, it was not the intent of the federalists to create one. They wanted a national government. Even though they had to compromise with the small states and make a Federal government (through the Senate) they expected that the national government would win out over time. Much like it has.....

I couldn't agree more with that statement. WE have allowed it to happen!

No I haven’t. I do have an old, old US history book that I got from a used book store. The author has a nice, matter of fact writing style that is without the more subjective views that are found today. His description of the events leading up to the war of 1812 is interesting and describes a federal government that was looking for something to do. Popular opinion was influenced by events but there is an undercurrent of a government getting involved with the conflict between France and England and looking to be a player. It was written in 1935 so there may be some post WWI angst in his thinking.

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