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The Federalist Papers: No. 44

On this day in 1788, Federalist Paper No. 44 is published. James Madison (a.k.a. “Publius”) continues his step-by-step defense of the powers given to the new national government.

He’s addressed the first four classes of governmental power (identified in Federalist No. 41). This paper tackles the 5th and 6th classes of powers.

First, Madison addresses the restraints placed on the states “from certain injurious acts.” These are fairly uncontroversial and are run through quickly. Obviously, allowing states to engage in some activities (such as coining money) would defeat the “purpose for which the power was originally submitted to the federal head.” Others, such as ex-post-facto laws, are “contrary to the first principles of the social compact, and to every principle of sound legislation.”

Second, Madison addresses those “several powers and provisions by which efficacy is given to all the rest.” He spends most of his time on one provision: Congress shall have “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 . . .”

The substance of the provision can’t be a problem, Madison, notes: “Without the SUBSTANCE of this power, the whole Constitution would be a dead letter.” Clearly, the Congress needs power to carry into effect the responsibilities that it has been given. Such a provision completes, rather than broadens, congressional authority.

If the substance of the provision is not a problem, could the “FORM” have been better? Madison runs through various options for rephrasing the provision and determines that all are problematic. What then, should be done, if “Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning”?

In other words, what happens when our Congress pretends that the “power to make all laws which shall be necessary and proper . . .” gives them a blank check to do anything they want to do?!

First, Madison says, the executive and the judiciary should act as a check upon the Congress. Second, the people themselves should elect “more faithful representatives” who can “annul the acts of the usurpers.”

I am willing to bet that most of you don’t think the executive and judiciary are upholding their end of the deal here! That leaves it to us.

Madison would have expected nothing less.