Federalist 42

(The Powers Conferred by the Constitution Further Considered)

Second class of powers lodged in the General Government:

• Regulate the intercourse with foreign nations

• To wit: to make treaties: to send receive ambassadors, other
public ministers and consuls
• To define and punish piracies, and offenses against the law of
nations
• To include 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
Third Class of powers:

• 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, and judicial proceedings of each state shall be
proved, and the effect they shall have in other states
 Federalist 43
(The Powers Conferred by the Constitution further considered)

Fourth class of powers comprises the following miscellaneous powers:

• A power to promote the progress of science and useful arts, by securing, for a limited time,
to authors and inventors, the exclusive right to their respective writings and discoveries
• To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding
ten miles square) as may, by cession of particular States and the acceptance of Congress,
become the seat of the government of the United States; and to exercise like authority over
all places purchased by the consent of the legislatures of the States in which the same shall
be. For the erection of forts, magazines, arsenals, dockyards, and other needful buildings.
• To declare the punishment of treason, but no attainder of treason shall work corruption of
blood, or forfeiture, except during the life of the person attained
• To admit new States into the Union, but no new State shall be formed or erected within the
jurisdiction of any other State; nor any State be formed by the junction of two or more
States, or parts of States without the consent of legislatures of the States concerned, as
well as of the Congress.
• To dispose of and make all needful rules and regulations respecting
the territory or other property belonging to the United States, with a
proviso, that nothing in the Constitution shall be construed as to
prejudice any claims of the United States, or of any particular State.
• To guarantee to every State in the Union a republican form of
government; to protect each of them against invasion; and on
application of legislature, or of the executive (when the legislature
cannot be convened), against domestic violence.
• To consider all debts contracted, and engagement entered into, before
the adoption of this Constitution, as being no less valid against the
United States, under this Constitution, than under the Confederation.
• To provide for amendments to be ratified by three fourths of the
States under two exceptions only.
• The ratification of the conventions of nine States shall be sufficient for
the establishment of this Constitution between the States, ratifying
the same.
 Federalist 44
(Restrictions on the Authority of the Several States)

A FIFTH class of provisions in favor of the federal authority consists of the following
restrictions on the authority of the several States:

• No state shall enter into any treaty, alliance, or confederation; grant letters of marque and
reprisal; coin money; emit bills of credit; make any thing but gold and silver a legal tender
in payment of debts; pass any bill of attainder, ex-post-facto law, or law impairing the
obligation of contracts; or grant any title of nobility.

• No state shall, without the consent of the Congress, lay any imposts or duties on imports
or exports, except, what may be absolutely necessary for executing its inspection laws,
and the net produce of all duties and imposts laid by any State on imports or exports, shall
be for the use of the treasury of the United States; and all such laws shall be subject to
the revision and control of the Congress/ No state shall, without the consent of Congress,
lay any duty on tonnage, keep troops or ship of war in time of peace, enter into any
agreement or compact with another State, or with a foreign power, or engage in war
unless actually invaded, or in such imminent danger as will not admit of delay.
The SIXTH and last class consists of the several powers and provisions by which
efficacy is given to all the rest:

• The power to make all laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers, and all other powers vested
by this Constitution in the government of the United States, or in any department
or officer thereof.
• This Constitution and the laws of the United States which shall be in pursuance
thereof, and all treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land, and the judges in every State
shall be bound thereby, any thing in the constitution or laws of any Sate to the
contrary notwithstanding.
• The Senators and Representative, and the members of the several State
legislatures, and all executive and judicial officials, both of the United States, and
the several States, shall be bound of oath or affirmation to support the
Constitution.
• Among the provisions for giving efficacy to the federal powers might be added
those which belong the executive and judiciary departments; but as there are
reserved for particular examination in another place, I pass them over in this.
 Federalist 45
(The alleged Danger from the Powers of the Union to the State Governments
Considered)

• Madison argues that the powers granted to the national government by the
Constitution do not threaten the powers left to the states. Madison asserts that
state governments will lose some of their importance and sovereignty as a result
of the Constitution. However, this is essential to the preservation of the union,
which Madison asserts is essential to the public good.

• Madison points to the history of confederations and feudal states to support his
claim that the federal government will to “prove fatal to the state governments.”
Historically, “local sovereignties prevailed” in contests with central authorities.
Madison then lists several reasons for why the state governments will continue to
have significant power and relevance under the Constitution. He argues that, if
anything, it is the federal government that is at greatest risk of being rendered
feeble, as under the Articles. The Constitution corrects that problem by offering
the federal government greater powers.
• Madison closes by asserting that the powers
granted to the federal government are not
really “new powers” so much as an
“invigoration” of the “original powers”
granted to it by the Articles. The Constitution
does not expand these powers. It just
“substitutes a more effectual mode of
administering them.”
 Federalist 46
(The Influence of the State and Federal Governments Compared)

• Madison continues and concludes the argument begun in the

previous paper. He asserts that the powers of the federal
government under the proposed constitution will not threaten
the powers reserved to the states.

• Madison begins the paper by reminding his audience that the

American people are the common superior of both the federal
and state governments. These two different types of
governments have different powers, intended for different
purposes, but nevertheless subject to the ultimate control of the
voters.
• Madison then employs a series of arguments to convince his audience
that the state governments have several natural advantages over the
federal government in terms of securing the support of the people. State
officials and representatives live in close daily contact with the electorate
and deal with issues that directly impact their lives. Furthermore, just as
representatives in state governments are typically biased towards their
home counties and towns, so will representatives in Congress be biased
towards their home states: “A local spirit will infallibly prevail much more
in the members of the congress, than a national spirit will prevail in the
legislatures of the particular states.”

• Furthermore, Madison argues that if the federal government were to

encroach on the rights of the states, the latter would have a significant
advantage in resisting such action. States could ultimately band together
in resisting the federal government. Madison dismisses as highly unlikely
the chances of the federal government being able to raise an army
powerful enough to overcome all the state militias.
 Federalist 47
(The Particular Structure of the New Government and the Distribution of Power Among
its Different Parts)

• James Madison begins this paper by telling his readers that he is going to examine a
specific principle of republican government: "separation of powers." One of the
principal objections to the constitution is that it violates this important principle. Its
opponents claim that the three branches of government are not sufficiently separate
and independent and that power is too unevenly distributed. It is feared that the
new government will collapse, and that liberty will be threatened.

• Madison agrees with those who place great importance on the separation of powers,
especially on the point that an unequal division of power could result in the loss of
liberty. If one branch has too much power, it does not matter how many men govern
or how they obtain office. Too much power in one branch of government "is the very
definition of tyranny." If these claims were true, Madison says that no other
arguments would need oppose it. He, however, is convinced that this charge cannot
be supported. How separate should each branch of government be?
• Montesquieu, the French political writer, formulated this principle of government. He took
the British constitution as his model, which he called "the mirror of political liberty."
However, the most casual glance at that constitution reveals that the branches of the
British government are far from totally separate or distinct. For example, the English king
acts in a legislative capacity when he enters into treaties with foreign sovereigns: once
treaties are signed they have the force of legislative acts. The English king not only appoints
and removes judges; he frequently consults them. The judicial branch, then, acts in an
advisory capacity to the executive branch. The legislative branch advises the king on
constitutional matters and, in cases of impeachment, the Houses of Lords assumes judicial
power.

• From these few facts, Madison then concluded that Montesquieu, when he wrote that
"there can be no liberty where the legislative and executive powers are united in the same
person . . . or, if the power of judging be not separated from the legislative and executive
powers," did not mean that the powers should remain absolutely separate or that each
branch should not have any control over the other branches.

• Madison continues that if one looks at the state constitutions, there is no state in which the
branches of government are absolutely separate and distinct. The state constitutions do not
violate the separation of power doctrine set forth by Montesquieu, Madison concludes, and
neither does the United States Constitution.
 Federalist 48
(These Departments should not be so far Separated as to have no Constitutional control
over each other)

• Publius begins by telling the reader that we discussed some of the issues
raised by the doctrine known as "separation of powers." This principle of
republican government does not imply that the three branches need to be
completely separate and independent. The very opposite is true. In order
that this doctrine can operate effectively, each branch of government must
have sufficient power to impose some restraints over the other two.

• The Constitution grants to each branch certain exclusive powers. These

powers should not be interfered with; however, power not carefully
controlled tends to expand. Our first task, he writes, is to understand and
distinguish the differences between legislative, executive, and judicial
power. This is necessary to protect the legitimate powers of each branch.
• It is not enough to simply set forth on paper what the proper boundaries are. There must
be some latitude, some overlap, in the definition of powers assigned to each branch.
Experience with state governments has shown that theoretical checks written into the state
constitutions are inadequate, particularly in preventing the growth of legislative power. The
most serious mistake made by the framers of republican forms of government is that they
concerned themselves exclusively with the problem of too much executive power. They
forgot that legislative tyranny is as evil as executive tyranny.

• In hereditary monarchies the king is feared; in direct democracies the executive is also
feared because the legislative branch is too large to effectively check the executive, and
power is so highly diffused that conflicts are difficult to resolve. In direct democracies, the
legislature cannot tyrannize because it cannot govern.

• In the proposed government, however, it is the legislative branch that is most likely to
abuse power. More power, both unrefined and unlimited, has been granted to it than to the
other two branches. In addition, the legislative branch controls the money and has the
greatest influence in the determination of salaries paid to government employees. Such a
situation invites corruption. Presidential power, on the other hand, is simpler in nature, and
the Constitution clearly defines and limits it. The same is true of judicial power. Any attempt
by these two branches to infringe upon the Congress would be quickly detected and
blocked.