From the New York Packet. Friday, January 25, 1788.
MADISON
To the People of the State of New York:
A FIFTH class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several States:
1. "No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal3; 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 impairing4 the obligation of contracts; or grant any title of nobility."
The prohibition5 against treaties, alliances, and confederations makes a part of the existing articles of union; and for reasons which need no explanation, is copied into the new Constitution. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the States after a declaration of war; according to the latter, these licenses6 must be obtained, as well during war as previous to its declaration, from the government of the United States. This alteration7 is fully8 justified9 by the advantage of uniformity in all points which relate to foreign powers; and of immediate10 responsibility to the nation in all those for whose conduct the nation itself is to be responsible.
The right of coining money, which is here taken from the States, was left in their hands by the Confederation, as a concurrent11 right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy12 and value. In this instance, also, the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the particular States could have no other effect than to multiply expensive mints and diversify13 the forms and weights of the circulating pieces. The latter inconveniency defeats one purpose for which the power was originally submitted to the federal head; and as far as the former might prevent an inconvenient14 remittance15 of gold and silver to the central mint for recoinage, the end can be as well attained16 by local mints established under the general authority.
The extension of the prohibition to bills of credit must give pleasure to every citizen, in proportion to his love of justice and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the States chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt17, which can be expiated18 no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it. In addition to these persuasive19 considerations, it may be observed, that the same reasons which show the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. Had every State a right to regulate the value of its coin, there might be as many different currencies as States, and thus the intercourse20 among them would be impeded21; retrospective alterations22 in its value might be made, and thus the citizens of other States be injured, and animosities be kindled23 among the States themselves. The subjects of foreign powers might suffer from the same cause, and hence the union be discredited24 and embroiled25 by the indiscretion of a single member. No one of these mischiefs27 is less incident to a power in the States to emit paper money, than to coin gold or silver. The power to make any thing but gold and silver a tender in payment of debts, is withdrawn28 from the States, on the same principle with that of issuing a paper currency.
Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark29 in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents30. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative31 interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential33 speculators, and snares34 to the more-industrious and less-informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish35 speculations36 on public measures, inspire a general prudence37 and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility is copied from the articles of Confederation and needs no comment.
2. "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 inspection38 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 treasury39 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 ships 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 imminent40 danger as will not admit of delay."
The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified41 seems well calculated at once to secure to the States a reasonable discretion26 in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion. The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark.
The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest.
1. Of these the first is, the "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
Few parts of the Constitution have been assailed42 with more intemperance43 than this; yet on a fair investigation44 of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper45. But have they considered whether a better form could have been substituted?
There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not EXPRESSLY delegated; they might have attempted a positive enumeration46 of the powers comprehended under the general terms "necessary and proper"; they might have attempted a negative enumeration of them, by specifying47 the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference.
Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors48 have been, to the alternative of construing49 the term "EXPRESSLY" with so much rigor50, as to disarm51 the government of all real authority whatever, or with so much latitude52 as to destroy altogether the force of the restriction1. It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring53 more or less to the doctrine54 of CONSTRUCTION or IMPLICATION. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed55 with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted.
Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the PARTICULAR POWERS, which are the means of attaining56 the OBJECT of the general power, must always necessarily vary with that object, and be often properly varied57 whilst the object remains58 the same.
Had they attempted to enumerate59 the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical60; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue61 by the general terms, NOT NECESSARY OR PROPER, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made.
Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite62 as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized63; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility64; and the real inconveniency would be incurred65 of not removing a pretext66 which may be seized on critical occasions for drawing into question the essential powers of the union.
If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation67 will depend on the executive and judiciary departments, which are to expound68 and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul69 the acts of the usurpers. The truth is, that this ultimate redress70 may be more confided71 in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations72 of the State constitutions are more likely to remain unnoticed and unredressed.
2. "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme73 law of the land, and the judges in every State shall be bound thereby74, any thing in the constitution or laws of any State to the contrary notwithstanding."
The indiscreet zeal75 of the adversaries76 to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically77 defective78. To be fully sensible of this, we need only suppose for a moment that the supremacy79 of the State constitutions had been left complete by a saving clause in their favor.
In the first place, as these constitutions invest the State legislatures with absolute sovereignty, in all cases not excepted by the existing articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated80 in the Confederation, would have been annulled81, and the new Congress would have been reduced to the same impotent condition with their predecessors.
In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such States, have brought into question every power contained in the proposed Constitution.
In the third place, as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere32 with some and not with other constitutions, and would consequently be valid82 in some of the States, at the same time that it would have no effect in others.
In fine, the world would have seen, for the first time, a system of government founded on an inversion83 of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.
3. "The Senators and Representatives, and the members of the several State legislatures, and all executive and judicial84 officers, both of the United States and the several States, shall be bound by oath or affirmation to support this Constitution."
It has been asked why it was thought necessary, that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States, in favor of the State constitutions.
Several reasons might be assigned for the distinction. I content myself with one, which is obvious and conclusive85. The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the States.
4. Among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments: but as these are reserved for particular examination in another place, I pass them over in this.
We have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the union. The question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies86 of the union shall be established; or, in other words, whether the union itself shall be preserved.
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1
restriction
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| n.限制，约束 | |
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restrictions
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| 约束( restriction的名词复数 )； 管制； 制约因素； 带限制性的条件（或规则） | |
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reprisal
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| n.报复，报仇，报复性劫掠 | |
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impairing
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| v.损害，削弱( impair的现在分词 ) | |
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prohibition
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| n.禁止；禁令，禁律 | |
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licenses
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| n.执照( license的名词复数 )v.批准，许可，颁发执照( license的第三人称单数 ) | |
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alteration
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| n.变更，改变；蚀变 | |
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fully
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| adv.完全地，全部地，彻底地；充分地 | |
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justified
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| a.正当的，有理的 | |
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immediate
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| adj.立即的；直接的，最接近的；紧靠的 | |
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concurrent
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| adj.同时发生的，一致的 | |
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alloy
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| n.合金，(金属的)成色 | |
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diversify
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| v.（使）不同，（使）变得多样化 | |
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inconvenient
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| adj.不方便的，令人感到麻烦的 | |
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remittance
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| n.汇款，寄款，汇兑 | |
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attained
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| （通常经过努力）实现( attain的过去式和过去分词 )； 达到； 获得； 达到（某年龄、水平、状况） | |
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guilt
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| n.犯罪；内疚；过失，罪责 | |
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expiated
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| v.为（所犯罪过）接受惩罚，赎（罪）( expiate的过去式和过去分词 ) | |
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persuasive
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| adj.有说服力的，能说得使人相信的 | |
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intercourse
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| n.性交；交流，交往，交际 | |
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impeded
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| 阻碍，妨碍，阻止( impede的过去式和过去分词 ) | |
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alterations
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| n.改动( alteration的名词复数 )；更改；变化；改变 | |
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kindled
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| （使某物）燃烧，着火( kindle的过去式和过去分词 )； 激起（感情等）； 发亮，放光 | |
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discredited
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| 不足信的，不名誉的 | |
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embroiled
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| adj.卷入的；纠缠不清的 | |
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discretion
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| n.谨慎；随意处理 | |
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mischiefs
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| 损害( mischief的名词复数 )； 危害； 胡闹； 调皮捣蛋的人 | |
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withdrawn
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| vt.收回；使退出；vi.撤退，退出 | |
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bulwark
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| n.堡垒，保障，防御 | |
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constituents
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| n.选民( constituent的名词复数 )；成分；构成部分；要素 | |
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legislative
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| n.立法机构，立法权；adj.立法的，有立法权的 | |
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interfere
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| v.(in)干涉，干预；(with)妨碍，打扰 | |
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influential
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| adj.有影响的，有权势的 | |
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snares
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| n.陷阱( snare的名词复数 )；圈套；诱人遭受失败（丢脸、损失等）的东西；诱惑物v.用罗网捕捉，诱陷，陷害( snare的第三人称单数 ) | |
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banish
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| vt.放逐，驱逐；消除，排除 | |
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speculations
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| n.投机买卖( speculation的名词复数 )；思考；投机活动；推断 | |
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prudence
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| n.谨慎，精明，节俭 | |
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inspection
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| n.检查，审查，检阅 | |
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treasury
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| n.宝库；国库，金库；文库 | |
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imminent
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| adj.即将发生的，临近的，逼近的 | |
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qualified
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| adj.合格的，有资格的，胜任的，有限制的 | |
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assailed
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| v.攻击( assail的过去式和过去分词 )；困扰；质问；毅然应对 | |
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intemperance
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| n.放纵 | |
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investigation
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| n.调查，调查研究 | |
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improper
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| adj.不适当的，不合适的，不正确的，不合礼仪的 | |
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enumeration
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| n.计数，列举；细目；详表；点查 | |
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specifying
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| v.指定( specify的现在分词 )；详述；提出…的条件；使具有特性 | |
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predecessors
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| n.前任( predecessor的名词复数 )；前辈；（被取代的）原有事物；前身 | |
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49
construing
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| v.解释（陈述、行为等）( construe的现在分词 )；翻译，作句法分析 | |
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50
rigor
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| n.严酷，严格，严厉 | |
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51
disarm
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| v.解除武装，回复平常的编制，缓和 | |
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52
latitude
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| n.纬度，行动或言论的自由(范围)，(pl.)地区 | |
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53
recurring
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| adj.往复的，再次发生的 | |
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doctrine
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| n.教义；主义；学说 | |
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distressed
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| 痛苦的 | |
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56
attaining
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| （通常经过努力）实现( attain的现在分词 )； 达到； 获得； 达到（某年龄、水平、状况） | |
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57
varied
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| adj.多样的，多变化的 | |
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remains
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| n.剩余物，残留物；遗体，遗迹 | |
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enumerate
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| v.列举，计算，枚举，数 | |
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60
chimerical
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| adj.荒诞不经的，梦幻的 | |
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residue
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| n.残余，剩余，残渣 | |
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requisite
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| adj.需要的，必不可少的；n.必需品 | |
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authorized
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| a.委任的，许可的 | |
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plausibility
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| n. 似有道理, 能言善辩 | |
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incurred
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| [医]招致的，遭受的； incur的过去式 | |
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pretext
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| n.借口，托词 | |
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usurpation
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| n.篡位；霸占 | |
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expound
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| v.详述；解释；阐述 | |
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annul
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| v.宣告…无效，取消，废止 | |
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redress
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| n.赔偿，救济，矫正；v.纠正，匡正，革除 | |
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confided
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| v.吐露（秘密，心事等）( confide的过去式和过去分词 )；（向某人）吐露（隐私、秘密等） | |
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72
violations
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| 违反( violation的名词复数 )； 冒犯； 违反（行为、事例）； 强奸 | |
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supreme
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| adj.极度的，最重要的；至高的，最高的 | |
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thereby
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| adv.因此，从而 | |
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75
zeal
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| n.热心，热情，热忱 | |
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76
adversaries
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| n.对手，敌手( adversary的名词复数 ) | |
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radically
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| ad.根本地，本质地 | |
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defective
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| adj.有毛病的，有问题的，有瑕疵的 | |
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supremacy
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| n.至上；至高权力 | |
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enumerated
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| v.列举，枚举，数( enumerate的过去式和过去分词 ) | |
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81
annulled
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| v.宣告无效( annul的过去式和过去分词 )；取消；使消失；抹去 | |
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valid
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| adj.有确实根据的；有效的；正当的，合法的 | |
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inversion
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| n.反向，倒转，倒置 | |
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judicial
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| adj.司法的，法庭的，审判的，明断的，公正的 | |
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conclusive
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| adj.最后的，结论的；确凿的，消除怀疑的 | |
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exigencies
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| n.急切需要 | |
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