The Federalist. Hamilton Alexander

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      B. The Powers of Government

      Publius indicates at the outset of his discussion of the powers of the proposed national government that two questions are uppermost in his mind: first, whether any of the powers delegated to the national government are “unnecessary or improper,” and second, whether these powers will pose dangers to the authority of the States. To answer the first question he surveys (Nos. 41 through 44) the powers of the national government under six categories: defense; commerce with foreign nations; relations between the States; “miscellaneous objects of general utility”; restraints upon the States; and “provisions for giving due efficacy” to the foregoing powers. He answers the second of these questions, regarding foreign commerce, in the last two essays (Nos. 45 and 46).

      In his discussion of the common defense (No. 41), Publius again warns of the danger and futility of trying to limit the powers of the national government. “The means of security,” he writes, “can only be regulated by the means and the danger of attack. They will in fact be ever determined by these rules and by no others.” At the same time, he rejects the notion that the “general welfare” clause vests the national government with undefined powers. In No. 42 he justifies the powers delegated to the national government on various grounds. He notes, for instance, that few would question the propriety of the national government’s conducting foreign relations, the need for some superintending authority to regulate commerce among the States, or the convenience of general laws regarding naturalization. Likewise, in No. 43 he points to the need or at least the desirability of giving “miscellaneous powers” to the national government, which include provision for the admission of new States, national control over the seat of government, and the guarantee of a republican form of government for each State.

      Relatively little controversy surrounds the powers Publius surveys in Federalist Nos. 41–43. However, the Anti-Federalists were greatly concerned about the “necessary and proper” clause (Article 1, Section 8, Paragraph 18) and the extent to which the national government might use this provision to enlarge its powers at the expense of the States. Publius turns his attention to this clause in No. 44, where he argues that even if the Constitution had contained no such provision, the national government would, “by unavoidable implication,” still possess the power to pass laws “necessary and proper” to execute its expressly delegated powers. Once again, Publius emphasizes that the means must be apportioned to the ends: “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it, is included.” He points out, however, that if the national government were to overextend its authority and do that which is unnecessary or improper, the people can “annul the acts of the usurpers” through the “election of more faithful representatives.”

      Publius’s discussion of the “necessary and proper” clause provides the backdrop for his discussion (essays 45 and 46) of the second question—that is, whether the powers of the national government threaten the States. In No. 45, he advances the opinion that in contests between the States and national government over the extent of their respective powers, the State governments will enjoy an inherent advantage. In both Nos. 45 and 46, he sets forth in detail the reasons why he holds this position. He does concede (No. 46) that “manifest and irresistible proofs of better administration” on the part of the national government can operate to overcome these inherent State advantages. However, he is adamant in maintaining that any infringement on popular liberties through unwarranted intrusions of the national government would be met by stern opposition on the part of the States—an opposition that “the federal government would hardly be willing to encounter.”

      C. The Separation of Powers

      The first sentence of Federalist No. 51 provides a convenient point of departure for understanding those essays (Nos. 47 through 51) devoted to the principle of the separation of powers. In this sentence Publius asks: “To what expedient then shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution?” Publius strongly believes it is necessary to maintain the separation of powers provided for in Articles I, II, and III of the proposed Constitution. In No. 47, he indicates in no uncertain terms why it is necessary to maintain this partition. Echoing the accepted wisdom of that period, he writes that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” By tyranny, as he makes clear by quoting from Montesquieu, he means arbitrary, capricious, and oppressive rule by those possessing any two of these powers. Thus, he believes that for the proposed Constitution to succeed it is imperative that no one branch be able to exercise the whole power of another.

      In the remaining papers in this group, Publius sets out to canvass the means by which the departments can be kept separate in order to prevent tyranny. In the first of these (No. 48), he inquires whether “parchment barriers” or written provisions in the Constitution to the effect that each department should stay within its own sphere would be sufficient to maintain the separation. In answering this question, he emphasizes that the legislature is most to be feared because it “is every where extending the sphere of its activity and drawing all power into its impetuous vortex.” For this reason, he urges the people “to indulge all their jealousy, and exhaust all the precautions” against this branch of government. Noting that the legislature possesses so many means and pretexts for aggrandizing the powers of the other branches, and mindful of difficulties experienced by some State governments, he concludes that a delineation of powers of the branches in the constitution will not, by itself, serve to prevent a “tyrannical concentration” of powers.

      He next turns his attention (No. 49) to a critical examination of Jefferson’s proposal for keeping the branches within their proper spheres. The Jefferson plan called for appeals to the people whenever two-thirds of the membership of two branches of government so requested. Upon such an appeal a popularly elected convention would meet to resolve the conflict. Aside from certain technical difficulties that he notes, Publius finds the plan seriously deficient from a theoretical point of view. He believes that such occasional appeals to the people over constitutional questions would, particularly if frequent, serve to undermine popular “veneration” of the government in that they would suggest serious defects in the system. The favorable opinion of the people upon which the authority of government ultimately rests would then, he maintains, suffer a serious, if not complete, erosion. Moreover, passions would be aroused over these constitutional matters, thereby disturbing the “public tranquillity” and the very stability of the constitutional order. But the “greatest objection,” in his mind, is that the legislature is most likely to encroach on the other branches and that its members, because of their influence and popularity with the people, would most likely be the members of any convention elected to redress the alleged violations. Consequently, the legislators would be the judge of their own cause. But even if this were not the case, Publius argues that “passions,” not “reason,” would most likely prevail in these conventions.

      Publius then considers (No. 50) whether periodic appeals to the people at fixed intervals might serve the purpose of maintaining the necessary separation of powers. Again he sees fatal flaws in any such scheme. If the appeals occur too close to the time of the alleged infraction, they will be attended with all the “circumstances” which “vitiate and pervert the result of” occasional appeals. And if the interval between the appeal and the alleged transgression is a long one, he sees good reasons why the appeal is not likely to serve its purpose: the prospect of distant censure will not restrain those bent upon aggrandizement; the transgressors might have already accomplished their ends, thereby rendering the remedy superfluous; or the transgression may, in the interval, have taken “deep root” so that it cannot be remedied. He notes that the experience of Pennsylvania with its Council of Censors bears out his observations concerning the ineffectiveness of this barrier.

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