Federalist #44

Restrictions on the Authority of the Several States  (Madison)

In Federalist 44, Madison further explains the importance of federal authority.  Of particular interest in this essay are the constitutional restrictions on state powers and the extent of those powers delegated to the federal government.  In reference to the problems of union under the Articles of Confederation, Madison discusses the reasons for concentrating key powers at the federal level.  Next, Madison appeals to reason and history in his effort to show the necessity of key constitutional provisions to setting up a stronger union. 

The need for stronger central government and “more perfect union” shadow Madison’s explanations on the constitutional restrictions imposed on state governments.  The new Constitution encapsulates an amalgamation of old and new principals.  As under the Articles of Confederation, the central government here possesses the power to make treaties and to oversee interstate and foreign activities.  While the Articles gave states had the power to grant letters of marque, the new Constitution provides that states obtain that power from the federal government.  Power over coinage is rightfully the province of the federal government, contends Madison.  He writes, “[h]ad every State a right to regulate the value of its coin, there might be as many different currencies as States, and thus the intercourse among them would be impeded.”   Other restrictions on states, such as prohibitions pertaining to bills of attainder, ex post facto laws, and titles of nobility, to name few, are essential to establishing a stronger union.     

On the extent of federal authority, critics question the constitutional method of limiting the scope of federal power, specifically aiming their sites on the vagueness of the “Necessary and Proper” clause.  Countering, Madison discusses other methods that the framers considered but rejected, overall arguing that the existing method is essential to the security and general welfare of the union.  The founders nonetheless attempted to discover a more efficient way to limit government but not so much as to render it feckless in providing collective benefits.    

One method the founders considered was to omit the Necessary and Proper clause, and thereby limit the federal government to those powers enumerated in Article I, Section 8.  This method would have been similar to the Articles of Confederation.  However, Madison said that the method might have left the federal government powerless in future, unforeseen civil problems. 

In addition, the members could have attempted a “positive enumeration of the powers comprehended under the general terms “necessary and proper.”  However, Madison alluded to the absurdity of this method. Arguably, had the convention wrote a “complete digest of laws on every subject to which the Constitution relates,” after having taken into account all existing situations and all possible future situations, the Union would still have been forsaken and weak.   Madison explains that it would be impossible to provide a complete list of general powers, which falls under the Necessary and Proper Clause, which Congress could invoke to address all futuristic national situations.  He did say that the federal government could increase it power in times of war.  States retain most power during times of peace.     

Madison also addressed the issue of congressional usurpation versus state usurpation.  Why, according to Madison, should people worry less about federal usurpation and more about state usurpation?  People are more vigilant of the federal government than of state governments.  As Hamilton argued in Federalist 17, people trust their state governments more than the federal government.   States will also watch the powers exercised by the federal government for unconstitutional acts.   If a state passes a bad law, the federal government cannot do anything about it.  If the federal government passes a bad law, states will be immediately alarmed.   There is no immediate intermediary between states and the people.  However, there is one between the federal government and the people, and that is, the states. 

Madison’s essay is powerfully convincing in demonstrating how the founders constructed a Constitution that consolidates more power in the central government without encroaching too much on powers that are best left to the states.  Put differently, he never loses sight of the benefits of federalism.  The essay is a nice precursor to Federalist 45, in which Madison continues discussing federalism, highlighting those policy areas that are best left to the administration of the federal government.  As he asserts, “The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.   The former [federal] will be exercised principally on external objects [international trade, interstate commerce, coining money, etc], as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”