idea that there is need for a constitutional division of the sources of revenue between the State and national governments to ensure sufficient revenues for the States. Such a division, he warns, might prevent the national government from fulfilling its critical responsibilities. Moreover, he cannot see any division of the sources of revenue that would not leave the States with either “too much or too little” relative to their needs.
In the final two essays (Nos. 35 and 36) of this section, Publius takes up and answers Anti-Federalist objections that the House of Representatives will not be able to produce an equitable system of taxation because it will not be large enough to reflect the diversity of interests in the nation. While he holds (No. 35) that the representation of all classes of people is both “unnecessary” and “altogether visionary,” he firmly believes that the classes that will dominate—“landholders, merchants, and men of the learned professions”—will have a sufficient understanding and sympathy with the various interests of society to produce an equitable system for revenues. In this respect, he envisions those from the “learned professions” adjudicating whatever differences might arise between the “different branches of industry” in a fashion consistent with the general welfare. In addition, he rejects (No. 36) the charge that the Congress will not have sufficient knowledge of local circumstances to formulate effective and equitable taxation policies. He notes that the information needed for this purpose can easily be obtained with respect to the imposition of indirect taxes, such as import duties and excise taxes. As for direct taxes, such as those on real property, he maintains that the system used by the individual States can readily be “adopted and employed by the federal government.”
PART IV
Why the Proposed Constitution Conforms with the Principles of Republicanism and Good Government
A. The General Form of Government
Federalist Nos. 37 through 40 discuss concerns of a general nature. No. 37, for instance, is perhaps the most philosophical of all the essays. Here Publius (Madison) provides an overview of the complexity and enormity of the task confronting the Founding Fathers at the Philadelphia Convention. He comments on the “novelty of the undertaking”; the difficulties of marking out the divisions between the departments of government, as well as those surrounding the division of authority between the State and national governments; and the delicate task of providing for the proper balance between energy and stability necessary for an effective and stable government without infringing upon liberty or violating the principles of republicanism.
After stressing the enormous obstacles that must be faced in establishing a new government by pointing to examples from ancient history (No. 38), Publius proceeds to castigate the Anti-Federalists for compounding these difficulties. He notes the lack of consensus among them about what is wrong with the proposed system and their clamor for amendments before the proposed system has even had a chance to operate. He faults them for quibbling over supposed defects in the proposed Constitution while ignoring the highly dangerous and unbearable political situation under the Articles.
In essay No. 39, Publius takes up two highly important concerns. First, he sets forth the “true principles” of republicanism, which call for direct or indirect control over government by “the great body of the society, not from an inconsiderable proportion, or favoured class of it.” Second, he undertakes to answer Anti-Federalist critics who charge that the proposed Constitution calls for a consolidated, national, or unitary government that does not conform to the principles of federalism. He examines the proposed system from five different vantage points and concludes that it is neither wholly national (unitary or consolidated) nor federal (confederate) but a “composition of both.”
Finally, in Federalist No. 40, Publius takes up and attempts to answer the charge—one that has endured over the decades—that the members of the Constitutional Convention exceeded their authority by drafting an entirely new constitution instead of simply revising the Articles, as they had been instructed to do. He answers by arguing that the delegates appropriately accorded priority to that part of their mandate which instructed them to provide for a government capable of preserving the Union and meeting its needs. Such a government, he maintains, simply could not be fashioned through any conceivable revision of the Articles.
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