Federalist No. 45
Federalist No. 45: "The Alleged Danger From the Powers of the Union to the State Governments Considered", is an essay by James Madison. It is the forty-fifth of The Federalist Papers, and was published on January 26, 1788 under the pseudonym Publius. Madison argues that the strength of the federal government under the proposed United States Constitution does not pose a danger to the individual states, a major concern of the Anti-Federalists.
Invigoration of original powers
Madison writes that the new Constitution does not in principle enlarge the powers of the Federal government, but merely renders that government more effective in carrying out its existing duties:
If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them.
Central to administering these powers, Madison argues, is the power to tax. Further, he states that this power has precedent in the Articles of Confederation:
The change relating to taxation may be regarded as the most important; and yet the present Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defense and general welfare, as the future Congress will have to require them of individual citizens
Madison also argues that the National Government is indeed subservient to the State Governments, yet the Federalist structure serves as a method of disguising this truth. Madison argues that the National Government must rely on the states to pass amendments, and the states themselves can propose and pass amendments at their choosing.
Federal powers are few and defined
|“||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.||”|
Alexander Hamilton relied on the same view when later arguing, in Federalist No. 84, against inclusion of a Bill of Rights in the Constitution. Hamilton was wary of articulating specific restrictions on federal power, for he felt it was clear that the default position of the federal government was an absence of power, and any specific power existed only by grant from the Constitution:
[A Bill of Rights] would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?—Alexander Hamilton (1788), Federalist No. 84
These observations foreshadow passage of the Tenth Amendment to the United States Constitution, ratified three years later, which codified the doctrine of enumerated powers:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.—Tenth Amendment to the United States Constitution, ratified 1791
The Constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of general and unlimited powers.—Justice Joseph Story (1833)
Perhaps vindicating Hamilton's opinion that, at least in the case of the Tenth Amendment (an original component of the Bill of Rights he rallied against), articulating restrictions of federal power were unnecessary, the Supreme Court found in United States v. Sprague (1931) that
The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the states or to the people. It added nothing to the instrument as originally ratified...
Nonetheless, the promise of limited federal power eventually succumbed to the pressures of expanding federal power in the 20th century, most notably during the New Deal era and President Franklin D. Roosevelt's "court packing" scheme. The turning point in Supreme Court jurisprudence on the subject is widely seen as United States v. Butler (1936). Although that decision struck down provisions within the Agricultural Adjustment Act as violating the Tenth Amendment, the court found that
...the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.—Justice Owen Roberts (1936)
This represented the first time the Supreme court had determined whether the Taxing and Spending Clause of the Constitution represented an independent grant of power to provide for the general welfare of the United States. They found it did, thus setting the stage for massive increases in federal spending, and consequent power, during the latter half of the 20th century.
A literal interpretation of Federalist No. 45 would indict much of the federal government's activities at that point as unconstitutional. Madison's view is all but unknown among Americans, although that could be said about many or most of the detailed positions presented in The Federalist Papers.
- Story, Joseph (1833). Commentaries on the Constitution of the United States: with a preliminary review of the constitutional history of the colonies and states before the adoption of the Constitution, 5th Edition. Boston: Little, Brown, and Company. pp. 663 § 909.
- United States v. Sprague, 282 U.S. 716.
- Pilon, Roger. "How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees" (PDF). Cato Policy Analysis (Cato Institute) 446: 1–19.
- United States v. Butler, 297 U.S. 1.
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