FReeper Book Club: The Debate over the Constitution, Federalist #42

Madison details other powers to be ceded to the Union as part of the Constitution.

² The second class of powers lodged in the general government consists of those which regulate the intercourse with foreign nations, to wit: to make treaties, to send and receive ambassadors, other public ministers and consuls, to define and punish piracies and felonies committed on the high seas and offenses against the law of nations, to regulate foreign commerce including a power to prohibit after the year 1808 the importation of slaves, and to lay an intermediate duty of ten dollars per head as a discouragement to such importations.

³ This class of powers forms an obvious and essential branch of the federal administration.

⁴ If we are to be one nation in any respect, it clearly ought to be in respect to other nations.

⁵ The powers to make treaties and to send and receive ambassadors speak their own propriety.

⁶ Both of them are comprised in the Articles of Confederation with this difference only: that the former is disembarrassed by the plan of the Convention of an exception under which treaties might be substantially frustrated by regulations of the states, and that a power of appointing and receiving “other public ministers and consuls,” is expressly and very properly added to the former provision concerning ambassadors.

⁷ The term ambassador, if taken strictly, as seems to be required by the Second of the Articles of Confederation, comprehends the highest grade only of public ministers and excludes the grades which the United States will be most likely to prefer where foreign embassies may be necessary.

⁹ Yet it has been found expedient and has been the practice of Congress to employ the inferior grades of public ministers and to send and receive consuls.

¹⁰ It is true that where treaties of commerce stipulate for the mutual appointment of consuls whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties, and that where no such treaties exist, the mission of American consuls into foreign countries may perhaps be covered under the authority given by the Ninth Article of the Confederation to appoint all such civil officers as may be necessary for managing the general affairs of the United States.

¹¹ But the admission of consuls into the United States, where no previous treaty has stipulated it, seems to have been nowhere provided for.

¹² A supply of the omission is one of the lesser instances in which the Convention have improved on the model before them.

¹³ But the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power.

¹⁴ A list of the cases in which Congress have been betrayed or forced by the defects of the Confederation into violations of their chartered authorities would not a little surprise those who have paid no attention to the subject, and would be no inconsiderable argument in favor of the new Constitution which seems to have provided no less studiously for the lesser than the more obvious and striking defects of the old.

¹⁵ The power to define and punish piracies and felonies committed on the high seas and offenses against the law of nations belongs with equal propriety to the general government and is a still greater improvement on the Articles of Confederation.

¹⁶ These articles contain no provision for the case of offenses against the law of nations and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations.

¹⁷ The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses.

¹⁸ The definition of piracies might, perhaps, without inconvenience be left to the law of nations, though a legislative definition of them is found in most municipal codes.

²⁰ Felony is a term of loose signification, even in the common law of England, and of various import in the statute law of that kingdom.

²¹ But neither the common nor the statute law of that or of any other nation ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption.

²² The meaning of the term, as defined in the codes of the several states, would be as impracticable as the former would be a dishonorable and illegitimate guide.

²³ It is not precisely the same in any two of the states and varies in each with every revision of its criminal laws.

²⁴ For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper.

²⁵ The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration.

²⁶ It were doubtless to be wished that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation.

²⁷ But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed.

²⁸ It ought to be considered as a great point gained in favor of humanity that a period of twenty years may terminate forever within these states a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government and may be totally abolished by a concurrence of the few states which continue the unnatural traffic in the prohibitory example which has been given by so great a majority of the Union.

²⁹ Happy would it be for the unfortunate Africans if an equal prospect lay before them of being redeemed from the oppressions of their European brethren!

³⁰ Attempts have been made to pervert this clause into an objection against the Constitution by representing it on one side as a criminal toleration of an illicit practice and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America.

³¹ I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government.

³² The powers included in the third class are those which provide for the harmony and proper intercourse among the states.

³³ Under this head might be included the particular restraints imposed on the authority of the states and certain powers of the judicial department, but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government.

³⁴ I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several states and the Indian tribes, to coin money, regulate the value thereof and of foreign coin, to provide for the punishment of counterfeiting the current coin and securities of the United States, to fix the standard of weights and measures, to establish a uniform rule of naturalization and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records and judicial proceedings of each state shall be proved and the effect they shall have in other states, and to establish post offices and post roads.

³⁵ The defect of power in the existing Confederacy to regulate the commerce between its several members is in the number of those which have been clearly pointed out by experience.

³⁶ To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual.

³⁷ A very material object of this power was the relief of the states which import and export through other states from the improper contributions levied on them by the latter.

³⁸ Were these at liberty to regulate the trade between state and state, it must be foreseen that ways would be found out to load the articles of import and export during the passage through their jurisdiction with duties which would fall on the makers of the latter and the consumers of the former.

³⁹ We may be assured by past experience that such a practice would be introduced by future contrivances, and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities and not improbably terminate in serious interruptions of the public tranquillity.

⁴⁰ To those who do not view the question through the medium of passion or of interest, the desire of the commercial states to collect in any form an indirect revenue from their uncommercial neighbors must appear not less impolitic than it is unfair since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade.

⁴¹ But the mild voice of reason pleading the cause of an enlarged and permanent interest is but too often drowned before public bodies as well as individuals by the clamors of an impatient avidity for immediate and immoderate gain.

⁴² The necessity of a superintending authority over the reciprocal trade of confederated states has been illustrated by other examples as well as our own.

⁴³ In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons without an augmentation of the tolls.

⁴⁴ In Germany it is a law of the Empire that the princes and states shall not lay tolls or customs on bridges, rivers, or passages without the consent of the Emperor and the Diet, though it appears from a quotation in an antecedent paper that the practice in this, as in many other instances in that confederacy, has not followed the law and has produced there the mischiefs which have been foreseen here.

⁴⁵ Among the restraints imposed by the union of the Netherlands on its members, one is that they shall not establish imposts disadvantageous to their neighbors without the general permission.

⁴⁶ The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the Articles of Confederation which render the provision obscure and contradictory.

⁴⁷ The power is there restrained to Indians, not members of any of the states, and is not to violate or infringe the legislative right of any state within its own limits.

⁴⁸ What description of Indians are to be deemed members of a state is not yet settled and has been a question of frequent perplexity and contention in the federal councils.

⁴⁹ And how the trade with Indians, though not members of a state yet residing within its legislative jurisdiction, can be regulated by an external authority without so far intruding on the internal rights of legislation is absolutely incomprehensible.

⁵⁰ This is not the only case in which the Articles of Confederation have inconsiderately endeavored to accomplish impossibilities, to reconcile a partial sovereignty in the Union with complete sovereignty in the states, to subvert a mathematical axiom by taking away a part and letting the whole remain.

⁵¹ All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin is that by providing for this last case, the Constitution has supplied a material omission in the Articles of Confederation.

⁵² The authority of the existing Congress is restrained to the regulation of coin struck by their own authority or that of the respective states.

⁵³ It must be seen at once that the proposed uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different states.

⁵⁴ The punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both.

⁵⁵ The regulation of weights and measures is transferred from the Articles of Confederation and is founded on like considerations with the preceding power of regulating coin.

⁵⁶ The dissimilarity in the rules of naturalization has long been remarked as a fault in our system and as laying a foundation for intricate and delicate questions.

⁵⁷ In the Fourth Article of the Confederation, it is declared “that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce,” etc.

⁵⁹ Why the terms free inhabitants are used in one part of the article, free citizens in another, and people in another, or what was meant by [adding] to “all privileges and immunities of free citizens,” “all the privileges of trade and commerce,” cannot easily be determined.

⁶⁰ It seems to be a construction scarcely avoidable, however, that those who come under the denomination of free inhabitants of a state, although not citizens of such state, are entitled in every other state to all the privileges of free citizens of the latter, that is, to greater privileges than they may be entitled to in their own state, so that it may be in the power of a particular state, or rather every state is laid under a necessity, not only to confer the rights of citizenship in other states upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction.

⁶¹ But were an exposition of the term “inhabitants” to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed.

⁶² The very improper power would still be retained by each state of naturalizing aliens in every other state.

⁶³ In one state, residence for a short term confirms all the rights of citizenship; in another, qualifications of greater importance are required.

⁶⁴ An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity, and thus the law of one state be preposterously rendered paramount to the law of another within the jurisdiction of the other.

⁶⁵ We owe it to mere casualty that very serious embarrassments on this subject have been hitherto escaped.

⁶⁶ By the laws of several states, certain descriptions of aliens who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence.

⁶⁷ What would have been the consequence if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another state and then asserted their rights as such, both to residence and citizenship, within the state proscribing them?

⁶⁸ Whatever the legal consequences might have been, other consequences would probably have resulted of too serious a nature not to be provided against.

⁶⁹ The new Constitution has accordingly, with great propriety, made provision against them and all others proceeding from the defect of the Confederation on this head by authorizing the general government to establish a uniform rule of naturalization throughout the United States.

⁷⁰ The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different states, that the expediency of it seems not likely to be drawn into question.

⁷¹ The power of prescribing by general laws the manner in which the public acts, records and judicial proceedings of each state shall be proved, and the effect they shall have in other states, is an evident and valuable improvement on the clause relating to this subject in the Articles of Confederation.

⁷² The meaning of the latter is extremely indeterminate and can be of little importance under any interpretation which it will bear.

⁷³ The power here established may be rendered a very convenient instrument of justice and be particularly beneficial on the borders of contiguous states where the effects liable to justice may be suddenly and secretly translated in any stage of the process within a foreign jurisdiction.

⁷⁴ The power of establishing post roads must in every view be a harmless power and may perhaps by judicious management become productive of great public convenience.

⁷⁵ Nothing which tends to facilitate the intercourse between the states can be deemed unworthy of the public care.

The “regulation of the intercourse with foreign nations” is the second of the classes of power he has laid out, and he will, as before, attempt to examine it under two criteria: (1) is the sum of power granted sufficient to the need, unnecessary or improper, or dangerous; and (2) how that power is distributed among the branches of government.

² The second class of powers...: to make treaties, to send and receive ambassadors, other public ministers and consuls, to define and punish piracies and felonies committed on the high seas and offenses against the law of nations, to regulate foreign commerce including a power to prohibit after the year 1808 the importation of slaves, and to lay an intermediate duty of ten dollars per head as a discouragement to such importations.

Here the second criterion is established before the discussion begins. These are powers granted to Congress under Article I, Section 8. They are also powers granted in a less comprehensive fashion under the existing Articles of Confederation, and whether their new form constitutes an improvement is the topic of the bulk of this essay.

One deficiency of which Madison makes much is the restriction that results in the diplomatic corps authorized under the Ninth Article of Confederation to fully-empowered ambassadors only (7), leaving the structure of diplomacy that was current among other countries at the time adrift in a sea of indeterminacy. This limitation was fine for a new nation struggling to maintain a war, but clearly inadequate to support its peacetime trade efforts, which both Madison and Hamilton were on record as anticipating the most import factor in that new nation’s growth. The new Constitution corrects that deficiency (14).

A second deficiency concerns the power to define and punish piracies and felonies committed on the high seas. These are left largely undefined under the Articles of Confederation (16), and the remedial measures are restricted to the establishment of courts in which they are to be tried (17). Piracy itself is undefined within the Constitution other than Congress having the right to define it themselves, but that definition might best be left under the auspices of international law (18). Felonies on the high seas would find themselves defined by Congress in an attempt to avoid the confusion caused by the differing definitions of other countries (21) or the various American states (22).

Madison says he considers the matter of the regulation of foreign commerce to have been treated exhaustively in other essays (25) and so will not broach the matter in this one.

Finally, within the second class of powers, Madison reveals a topic that divided the country even before it coalesced under the Constitution: how to deal with the slave trade, more specifically that portion of it involving the importation of slaves from other countries. That, according to Article I, Section 9, was to be ended by the year 1808. It was a compromise with which Madison was obviously uncomfortable.

²⁶ It were doubtless to be wished that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation.

But, in fact, as Connecticut’s Roger Sherman stated, it was better to allow the Southern states to import slaves than to part with those states. The South’s “peculiar institution” was, at the time, perceived to be a waning proposition, but was still a matter of fierce contention when, in 1807, President Jefferson signed into law the federal prohibition. That prohibition was carefully worded to minimize actual punishment – slave cargoes impounded within the slave-holding states could still be legally sold, for example. Only part of the problem would proceed as Madison anticipated.

In fact, it had, more or less. It was a matter that had already ostensibly been addressed in law – by 1808 only the state of South Carolina actually allowed the legal importation of slaves. That importation peaked during that decade and tapered off sharply, at least insofar as legal records were kept. Smuggling, however, was rampant through Florida and Texas, very little of which could be controlled by ukases issued in Washington City.

What had happened in the meantime to arrest the atrophy of slavery was the invention of the cotton gin and the explosive growth of a slave-intensive industry that would supply the great British textile mills and compete furiously and successfully with the remaining British colonies for that trade. The importation of slaves decreased as Madison desired, but their usage did not, and because it did not, the abolition of the institution itself would linger, to be resolved only by war some eight decades hence.

Madison moves to his third class of the powers to be granted the federal government.

³² The powers included in the third class are those which provide for the harmony and proper intercourse among the states.

Although these may be regarded as involving the “particular restraints imposed on the authority of the states,” Madison has classed them separately – the fifth of his items in that list – and will deal with them later. A consideration of the proper distribution of responsibility within that area will be considered under his second criterion, the structure of government (33).

The regulation of trade between the states involves the prevention of duties imposed between them, which Madison considers injurious to the growth of trade. It is another defect in the Articles (35), and were it not addressed, it would provide encouragement for smuggling and tax avoidance that would be detrimental to the very states attempting to garner revenue from such duties (38). This was not mere theory, it was founded on the experience of Switzerland (43) and the Netherlands (45), and although the law in Germany, it was not the practice (44), which was demonstrably damaging to trade there.

Madison moves rapidly through other issues dealt with, some successfully, some not, by the Articles of Confederation: trade with Indian tribes (46-50), the power to coin and regulate money (51-53), punishment of counterfeiting (54), regulation of weights and measures (55), and he settles on an issue fundamental to the formation of all government: the topic of citizenship and naturalization. There is, says Madison, “a confusion of language here which is remarkable” (58).

Because of the varying terms used in the Fourth of the Articles – “free inhabitants,” “free citizens” and “people” – the true status of any one individual was often difficult to determine. The difficulty was that one state could, through purely local legislation, force another state to recognize one of its own aliens as a citizen through the provision for mutual recognition of citizens between states (60). It is a gaping hole whose obvious problems had only been avoided so far through luck (65). Now Madison gives a curious formulation that resounds within contemporary American politics.

The consequence would have been chaos: one state's ability to control its own immigration and citizenship would be at the mercy of the decisions made in any and every other state. For Madison this chaos is to be avoided by vesting control of all immigration and naturalization within a single federal authority. In practice, however, the problem appears to have taken another form: a border state is now as much at the mercy of those ignorant of local conditions at the federal level, as ever it was at the mercy of the equally uninformed political enthusiasms of a state in the interior. Implicit in the transfer of power from state to federal government is the latter’s good faith in exercising it. That, stated Hamilton previously, is not a problem to be solved within the Constitution.

Madison ends by addressing certain miscellaneous provisions that are an improvement over their counterparts in the Articles: uniform laws of bankruptcy (70), standardization of public acts and records (71), and the power of establishing post roads (74). It is all, says Madison, part of the proper sphere of government.

⁷⁵ Nothing which tends to facilitate the intercourse between the states can be deemed unworthy of the public care.

The contemporary reader must wonder what Madison would have thought of traveling seventy-five miles per hour over the stupendous structure of the Interstate Highway System that followed his prediction of “great public convenience” (74). One suspects he might have allotted it more than a single sentence.

Sources for the statements on slavery:
Hugh Thomas, The Slave Trade. The Story of the Atlantic Slave Trade: 1440-1870 (New York : Simon and Schuster, 1997)
David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (London: Cornell University Press, 1975)

⁷⁴ The power of establishing post roads must in every view be a harmless power and may perhaps by judicious management become productive of great public convenience.

In States’ Rights and the Union, Forrest McDonald traces the evolution of the concept of internal improvements in early America. The innocuous words above, coupled with Article I, Section 8, would lead to the spending of massive amounts of money on government transportation policy, all tied to the equally innocuous term, “internal improvements”.

Article I, Section 8 contains the words, “to pay the debts and provide for the common defense and general welfare of the United States.” “To pay” was seen as a limitation on the power to tax, not a separate grant of power, until the advocates of internal improvements began to argue otherwise. From this tiny acorn, the terms “common defense” and “general welfare” would grow like mighty oaks.

With a nation traversed by many navigable rivers, the initial idea was to build a network of canals to provide highways of water for moving people and goods. The Erie Canal, built by the state of New York, revolutionized the Northeast both in terms of transportation of goods and finance. Soon, certain states decided it would be in their best interests for the federal government to build those canals, a practice opposed strenuously by the states not affected who would have to pay for them.

From canals, government transportation policy focus shifted to roads. Nicholas Biddle of the Bank of the United States saw that the national debt was rapidly being retired, and to avoid excessive speculation in the stock market from the money being freed up by the retirement of government bonds, favored the building of highways and canals using money from government sources.

A “post road” is a road that is used for the delivery of mail, which is a federal responsibility. However, one can define a post road in a rather loose way. John Calhoun, early in his career before he discovered strict construction, proposed that dividends from the Bank be invested in a federal trust fund to finance highways and canals, citing the General Welfare Clause as his constitutional justification.

At first, federal expenditures for highways were not all that significant. Andrew Jackson went so far as to veto an expenditure for a highway that both began and ended in Kentucky, stating that such an expenditure was unconstitutional because the highway did not cross state lines. The fact that Kentucky was the political base of Henry Clay, one of Jackson’s many archenemies, of course had nothing to do with it.

Once railroads replaced highways as the principal means of moving goods and people, the building of highways became secondary until the 20th Century. As automobiles poured out of Henry Ford’s factory, state and local governments began a major highway building program that received an assist during the Depression from New Deal infrastructure spending, all tied to both the General Welfare Clause and the Interstate Commerce Clause.

But it was the Eisenhower Administration in the Fifties that launched America’s greatest and most successful experiment in socialism: the Interstate Highway System. Having seen Hitler’s autobahns during World War II, Eisenhower saw a national network of limited access highways as a means of facilitating commerce, clearing the cities in advance of a nuclear attack, and staging troops and materiel in the event of war. Thus, the Common Defense Clause was harnessed to build highways.

Here is Wikipedia's take on the definition:

A post road is a road designated for the transportation of postal mail. In past centuries only major towns had a post house, and the roads used by post riders or mail coaches to carry mail among them were particularly important ones or, due to the special attention given them, became so. In various centuries and countries, post road became more or less equivalent to main road, royal road, or highway. The 20th century spread of postal service blurred the distinction.

To be honest whether or not the road was built to carry the mail or carry people is really an academic point as it can be used for both just as it has been.

Andrew Jackson went so far as to veto an expenditure for a highway that both began and ended in Kentucky, stating that such an expenditure was unconstitutional because the highway did not cross state lines.

This, to me, is a key difference on how the commerce clause is being read today vs. how it was meant. IOW, originally it was meant as trade “between” the states rather than trade that affected trade between the states. Without this larger interpretation, we couldn’t have had the civil rights act of 1964. I also this that the reason isn’t as insidious as just “Wilsonian Progressives” but also the effect serving in WWII had on common Americans.

At 34, Madison lists some powers granted to the federal government by the Constitution. If you take exception to any of these powers, make a case for keeping them with the states.

34 I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several states and the Indian tribes, to coin money. . . .

To coin money..... That does seem to be a problem today, doesn’t it? That is since the Federal Government has outsourced it to the Federal Reserve. I’m not a Ron Paul guy by any means but ending the Fed does seem to bring us closer to the constitution.

As for the other powers, they all seem correct to me.

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