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The Federalist Papers: No. 42

On this day in 1788, Federalist Paper No. 42 is published. James Madison (a.k.a. “Publius”) engages in a detailed defense of various powers given to the national government. His paper is lengthy! (It’s hard to imagine such a lengthy editorial in any newspaper today, isn’t it?!) Thus, I will focus on just three important points.

First, Madison underscores the importance of creating a sound structure for government. When laws don’t make practical sense, officials are forced into violations of their power. As Publius noted in earlier papers, the end result of such violations is that the law is no longer respected, and more abusive usurpations of power begin to happen.


In this particular essay, Madison notes that the Articles of Confederation do not give Congress enough authority to manage relations with foreign nations. Some of these problems with the Articles may be nuanced, he admits, but “the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power.” The Continental Congress has been forced into “violations of their chartered authorities” too often. Improving this situation is “no inconsiderable argument in favor of the new Constitution.”


A second point: Madison obviously believes that the new Constitution will bring an eventual end to slavery, and he views this as a considerable benefit. Yes, the power to bring an end to slavery is “postponed until the year 1808.” The delay was made for obvious reasons: To get slave owners on board with the new Constitution. But, Madison notes, “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.”


Okay, so in retrospect, Madison was a tad optimistic on this point. However, his arguments underscore the fact that MANY in the founding generation saw the contradiction between the Revolution they’d fought and the institution of slavery. Madison was appealing to these people in Federalist No. 42.


A third and final point: Madison discusses the power of the national government to regulate interstate commerce. Unfortunately, this power is used quite broadly by our modern Congress, which seems to think that it can regulate anything and everything as “commerce.” But Madison discusses the scope of this power in a more narrow context. The object of the power was to keep states from interfering with the “great and essential power of regulating foreign commerce” and to keep states from lashing out at each other. In particular, it would keep them from loading “articles of import and export, during the passage through their jurisdiction, with duties.” Commercial states would “collect, in any form, an indirect revenue from their uncommercial neighbors.”


Somehow, this all seems like a far cry from our massive federal bureaucracy, which regulates anything from an endangered toad in a local lake to health care to school standards, doesn’t it?


My post with more background on the Federalist Papers and their authorship can be found in the Federalist Paper No. 1 summary (see October 27 history post, HERE).

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