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Ed
Madison confronts a new question in Federalist 40. It should be remembered that the original purpose of the Constitutional Convention was not to draft an entirely new document, it was to amend the existing Articles of Confederation. The original Convention was called to Annapolis, Maryland in 1786 and a second to Philadelphia in 1787. Madison argues that, in order to create a Republic, the old articles had to be scrapped and a new document crafted.
The instructions from the existing congress to the delegates included that a, “convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress and the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION.” [1] (Emphasis in the original).
He points out that to create a government that is “adequate” was impossible to do if they were limited to merely revising the existing articles, and, as ‘adequacy’ was the most important goal, scrapping the existing Articles was a necessity. To those who objected to going outside of the bounds of their charge he asks, “whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed…, as insufficient means, to have been sacrificed”. Using Aristotle’s word “happiness” is an acknowledgment that different citizens would have different definitions for that word, and that freedom was the only way that it could be pursued. Madison points out here that the ends were more important than the means by which they were reached.
There were principles that the founders intended to preserve from the Articles, including, “that the powers of the general government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence”. But Madison argues that the existing Articles are too “feeble” to ensure that critical sovereignty. Madison points out that the current Articles require unanimous approval by all the states, where as the proposed constitution would be approved by the people and thus more Republican in nature. And finally, it made no sense, “sacrificing substance to forms”, and that it was the substance of the newly proposed constitution that mattered.
In Federalist 41 Madison seeks to address two questions, “1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States? Is the aggregate power of the general government greater than ought to have been vested in it?” In order to answer the first question, it is necessary to list those powers that are being made a part of the new federal government.
Madison lists them expressly as follows, “1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers.”
Security necessarily means the raising of an army and, as was stated earlier, the Articles created an, “INDEFINITE POWER of raising TROOPS, as well as providing fleets”. What follows is a rather lengthy discussion of the history of standing armies. Suffice it to say that Madison acknowledges their necessity because one cannot be a pacifist nation in the face of nations who are not. The limitation that the constitution places on a standing army is that all appropriations must originate in the House of Representatives, the people’s house. And further, that house should have the highest turnover given the frequency of elections in that body. The concept was that it should fall to the group of representatives closest to the people to decide where the people’s money should be spent. The higher turnover in that house, relative to the British parliament for instance, would ensure that interests did not get intrenched to the point that they limited liberty through taxation.
The most strenuous objection to the constitution comes from the phrase, “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States”. To those who objected on the grounds that the “general welfare” could be construed to allow government to tax and spend on anything that it wanted, Madison points to Article 1 Section 8. The “general welfare” clause is immediately followed by a semi colon, and then a list of enumerated powers of the Federal government.[2] That means that the general welfare of the government is limited to those items only. Clearly that was the purpose of enumerating the powers of the federal government, “For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?”
Indeed.
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- All quotes are from https://guides.loc.gov/federalist-papers/text-31-40#s-lg-box-wrapper-25493393 ↑
- For the Constitutional text that Madison is referencing, please see https://constitution.congress.gov/browse/article-1/section-8/ This reference is annotated with some of the cases that modified the thinking on this clause throughout history. ↑