John Parillo on Federalist 42 and 43

James Madison writing in Federalist 42 starts by defending the proposed constitution’s prohibition on the importation of slaves after 1808 and the taxing of their sale in the meantime to discourage the practice. If you will please indulge my departing from a strictly historical summation of these papers, this is a critical point. There are those who say that our country, and its founding documents, were based on perpetuation of the practice of slavery.

They clearly were not.

The founders understood that they needed a federal government with more authority than the original Articles of Confederation if they were to survive the external threats that they faced from countries like Britain and Spain. They further understood that they would need all the states to be on board with this new country for it to be viable. Slavery was the norm in parts of the new country just as it was in much of the world at that time. By giving states several years to phase out the practice, they were making an unfortunate, but necessary compromise in pursuit of their very survival. This deadline, as well as the tax they intended to discourage the practice, were the down payment on living up to the ideals expressed in the Declaration of Independence.

It is worth quoting Madison’s answer to the founder’s modern critics at length.

“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 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. 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.” [1]

It is helpful to remember, once again, that slavery was commonly practiced at that time. The founders put a defined end to the practice, “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!”

In addition to this defined end to the importation of slaves, Madison points out that the existing Articles do not have any provisions for the allowing of ministers, consuls, and visits from other countries with the exception of ambassadors. There are no provisions for the definition of, “felonies on the high seas”, nor is there any ability for the country to have a role in the regulation of foreign commerce which could, conceivably, lead to trade wars between states.

At the time, each state could determine the definition of citizenship. The new constitution would provide a uniform definition of citizens which did not include, “paupers, vagabonds, and fugitives from justice”. If a person could be declared a citizen of one state, in violation of the laws of another state, that would lead to chaos. The same argument can be made with regard to laws governing interstate trade, bankruptcy and the like.

Federalist 43 is a description of some of the other powers of the proposed Federal government under the new constitution. They include things like the enforcement of copyright, legislative domain over the District of Columbia, the definition and punishment for treason, and the admission of other states into the union. This last power was nowhere in the Articles of Confederation and thus a necessary addition. This power also prevents any state from being made from an existing state, or more than one state, “without the consent of the legislatures of the States concerned, as well as of the Congress.”

The constitution would also, “guarantee to every State in the Union a republican form of government”. He notes that, “Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature.” And in another nod to the Greeks, points out that it was destroyed, “as soon as the king of Macedon obtained a seat among the Amphictyons.”

The constitution is indeed a living document in that Madison talks about the process for its amendment. That process requires amendments to be ratified by three fourths of the States with two exceptions. The first is the equal suffrage of the Senate which was designed as way to preserve the “residuary sovereignty of the States”, and the other is the previously mentioned 20-year agreement not to change the status of slavery. Madison and the founders wanted this process as a way to prevent the constitution from being too “mutable”.

This should remind us of Aristotle’s belief that the constitution of a country, which he defined as the laws, customs, and traditions of that country, should be difficult to change. So, while it is possible to change the constitution, the decision to do so should not be taken lightly, and neither was it designed to be a simple process.

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  1. All quotes are from


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