Federalist 42
Two viruses that define our age and negatively affect our judgements are the tendency to read the past in light of present values and, conversely, to think the problems we face are unique to us. Those viruses betoken a kind of self-indulgence, a smugness that communicates endless moral superiority. It becomes even more perverse when we think the only way we can feel good about ourselves is if we feel bad about ourselves. Anyone who studies history should know this: we haven’t invented problems nor have we invented a sense of superiority.
This may seem a strange way to start a discussion on Madison’s thoughts in Federalist #42, dealing as it does with a “second class of powers” given to the federal government, those that deal with relations between the US and foreign countries (the first class of powers, raising armies and taxation, were covered in 41). To this Madison adds a third class of powers: those whereby the federal government could regulate relationships between the states and some powers he considers minor and uncontroversial. Madison need not even mention that the powers he discusses are legislative powers.
These “classes” of power may suggest they are of less importance, and they probably seem to many of us, 238 years after the fact, as non-controversial, but Madison dwelled on them because they went to the heart of the move away from The Articles of Confederation, which is to say a shifting of power away from sovereign states and toward a more consolidated central government. In the process, Madison identifies two issues that remain of significant interest to us.
I’ll get to those shortly. In the opening part of the essay Madison examined the powers given to the new government as regards foreign relations. These would include the ability to receive ambassadors and other public officials from foreign countries, engaging in trade, and the power to police international waters. The question was not so much whether the new government should have such powers, but whether the federal government should exclusively hold those powers. So long as the states could receive public officials from foreign lands and engage in trade they could exercise more control over their domestic economies. A central government with such power could reallocate capital as to advantage the economies of some regions and disadvantage that of others. An additional layer being put between citizens and their government, and that government being more distant and remote, citizens would soon find themselves increasingly subject to impersonal economic forces that would affect their livelihoods.
Politicians now pratter endlessly about “the economy” and how to “grow” it, but these are largely abstractions. An “economy” is an abstract noun that directs our attention away from the productive actions of each individual economic actor, and those actions are animated by an intimate sense of immediate well-being. When large shifts in production and trade occur those individual actors may well lose this intimate sense, feeling subject to powers they little understand and can even less control. The historical record is replete with popular uprisings occurring during such times of economic upheaval, for as individuals are displaced not only geographically but also within familiar economic arrangements, anger is certain to follow.
The concern some Anti-federalists had was that a central government exercising significant regulatory power would make uncertainty, displacement, anxiety, and economic dislocation permanent, although constantly shifting, features of American life. True, an energetic government might add dynamism to “the economy,” but at the cost of destabilizing the lives and loves of many citizens who preferred the simplicity of neighborly exchange and self-employed independence to the promises of greater riches. The Constitution may have offered greater political stability but often at the cost of greater economic instability. The rise of populist movements in America, as everywhere else, are catalyzed by economic dispossession and growing economic inequality.
On the one hand it makes sense that any government, to be a government, had to have the ability to deal with other governments, although that power did exist under The Articles. Publius, however, defended the Constitution under the theory that the new government had to possess, if not a monopoly, than at least extensive power over such negotiations. Madison here argued that the Articles' provision for accepting ambassadors had to be expanded to entertaining foreign “consuls.” But here, for the critics, the devil was in the details. Who were these consuls, and what exactly would they be up to? And why, Anti-federalists wondered, did Publius so consistently wrap up the idea of foreign relations in the mantle of commerce?
As part of his defense of the new government’s authority over commerce, Madison raised the problem of commerce’s disruptions. There were, he suggested, two main sources of disruption: other governing authorities and lawless rogues. As to the first class, the governing authorities most likely to disrupt commerce were foreign powers, but also the governing powers subordinate to national power (the states). The Constitution, he believed, offered a solution to both problems, the first by giving the federal government a near monopoly on dealing with foreign nations and the second by attenuating the power of the states to engage in trade on their own terms. To this end, the new government needed to have extensive powers not only with regard to foreign countries but also the interactions between the states. This interstate power seemed soft enough, but the power to regulate has extensive ramifications.
As regards these regulatory powers, however, Madison mentioned two implicated modes of economic activity that he believed the Constitution had dealt with inadequately, and these are the items are referred to at the beginning of my essay. This far into The Federalist, Publius had not dealt with the issue of slavery nor how debates over it nearly brought the proceedings to a halt. There were obvious economic ramifications: a sudden ending of the practice would devastate the economies of certain regions and states, particularly the south. Abolition would also profoundly affect the lives of those who enslaved people.
The historical record on which delegates to the convention owned slaves is not entirely clear. The Gilder Lehman Institute claims 25 of the original 55 delegates owned slaves while the Constitutional Rights Foundation put the number at 17. The National Park Administration identified 12 slave owners, including James Madison.
Madison was born into a slave-holding plantation and family and inherited his father’s slaves. Like many slave-owners of the time Madison experienced no small amount of guilt over his complicity in a practice he found morally repugnant. The issue of slavery forced the convention to deal with two significant political questions: what are the limits of compromise, and how much activity that you find morally repugnant will you put up with in order to achieve a good you think essential or at least more fundamental? These questions never leave us.
It’s easy for us to take a moral stance on the question of slavery both because a complete moral consensus has already been achieved and because its existence doesn’t threaten other goods we cherish. The closest thing we have to the question today is abortion because, like those in 1787, we have no moral consensus on the question and because we are not entirely sure how to place it alongside other political goods. “Is the protection or elimination of abortion rights more fundamental than the maintenance of a tolerably peaceful public order?” is a question we seldom ask ourselves but the framers of the Constitution, mutatis mutandis, couldn’t avoid it. Certainly the abortion debates of our time test the limits of our ability to compromise, but they haven’t yet effaced the minimal compromises that maintain our constitutional order.
Some of the most captivating and dramatic moments of the convention and the state ratifying conventions occurred around the question of slavery and whether the Constitution’s compromises on the topic rendered the document wholly unacceptable. Some of the states where slavery was legal made it clear they would never vote for ratification if the federal government outlawed the practice or prohibited the importation of slaves. Indeed, the slave-trade proved the Constitution’s one exception to the federal government’s power to regulate commerce.
Much of the Anti-federalist opposition to the Constitution resulted from their opposition to slavery. George Mason and Luther Martin, for example, actively and aggressively denounced the practice, Martin referring to it as "an odious bargain with sin" that was "inconsistent with the principles of the revolution and dishonorable to the American character." He declaimed the Constitution's use of the slick phrase "such persons," saying that by using such euphemisms the writers of the Constitution had "anxiously sought to avoid the admission of expressions which might be odious in the ears of Americans, although they were willing to admit into their system those things which the expressions signified." For the Constitution to protect slavery was a "solemn mockery of, and insult to" God. Madison faced a more difficult task: to advocate for a document that defended a practice he found — to use contemporary parlance — “problematic.” In Federalist 42 he makes one of his most definitive statements about slavery and the Constitution’s compromises:
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. 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!
The second issue that Madison dealt with that has contemporary resonances was immigration. Political thinking requires attention to definitions and in this essay Madison attempted not only a clear definition of “felony” as regards maritime law, but also a notoriously tricky definition: what is a citizen? Ask the question at your next cocktail party and see how quickly confusion sets in. One way to get some clarity about the question is to delineate citizens from non-citizens, or in Madison’s words, between “citizens” and “inhabitants” of a state. What was at stake, in part, was the transferring of citizen’s rights and privileges between states. If you’re in South Carolina and you travel in North Carolina, do you enjoy all the rights and privileges of a North Carolinian, or do you retain the rights of a South Carolinian when you travel? The analogue would be contemporary foreign travel: what rights and privileges do you enjoy or retain when you’re in a foreign country? Spend some time in a Turkish prison and you’ll see what I mean.
The issue becomes knottier when you consider that the states possessed the power of naturalization. Does someone who became a naturalized citizen in one state automatically receive citizen status in another? Madison argued that the Articles were not clear on this issue, suggesting that a person could be an inhabitant of one state but, upon entering another, enjoy the full rights of citizenship (including, of course, the right to vote).
There are three main ways to change a polity: change its fundamental law, change its borders, and change it demographically. Madison argued, concerning the third category, for a uniform rule of naturalization; but such a rule would have to be attentive to the fact that the effects of the rule are vastly different for some states than others. Immigrants may come to America, but they land in a state, meaning that some locations bear immigrations unsettling effects more directly. That crisis remains with us to this day.
I remind the reader that in these essays Madison was defending the power of Congress, which alone had the authority to create rules of naturalization and immigration. A power so consequential could not be left in the hands of unelected judges or a power-usurping executive. Currently, Congress has operated with the controversial “delegation doctrine,” by which one branch of government may delegate its powers to another. Some many call it controversial while others prefer the word “hogwash.” Our idea that the president should determine immigration policy is yet another departure from Constitutional norms and practices, such departures we are willing to accept, it would seem, if we find the results to our liking. This is hardly a principled approach to politics and will turn it increasingly into a game of "back-and-forth."
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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