Guest Essayist: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

In Federalist #42, James Madison attempts to clarify the importance of national powers found in the Constitution that are essential to the successful operation of the government particularly in national and international affairs.  Categorizing these powers as second and third class was a means of distinguishing them not to disparage them.  Among them are: relations with foreign nations including the ability to make treaties,  to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;  and to regulate foreign commerce as well as interstate commerce between the states among others.

It is noteworthy that among the “second class of powers” he refers to is specifically the power to regulate and ban the importation of slaves.  Rather than hide or downplay this provision, Madison like many of the founders understood that while the acceptance of the institution of slavery was part of the compromise that allowed them to go forward with the Constitution, they made sure the public understood their anti-slavery sentiment and their plans to exercise the powers at the federal level.  Madison reminds his readers that “while it is 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” within the space of 20 years “It ought to be considered as a great point gained in favor of humanity …. within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; … will receive a considerable discouragement from the federal government, and may be totally abolished..” As Madison predicted and although it is often unmentioned, Congress banned the importation of slaves in August of 1808 the same year that the Constitution gave them the authority to do so.

In any event, Madison explains that while several of the international powers existed within the Articles of Confederation, others did not.  Treaty making and ambassadorial relations were among the powers of the first government.  However, the Constitution made treaty making easier by requiring two-thirds of the Senate to ratify them and caused ratified treaties to be treated as the equivalent of federal law in terms of conflicts with state laws.

On the other hand, the Articles failed to adequately address the issue of defining and punishing piracies and other felonies committed on the “high seas.”  Madison explains that the Constitution is far superior in this regard because although tribunals were authorized under the Articles, the actual definition of the violations as well as the scope of activity covered was not provided for in the Articles.  Madison feared that such a scenario could mean that one of the States could have a law defining an offense as piracy that the other states do not recognize.  When a breach of this law occurs, Madison laments that such a situation could result in the other states being obligated to submit manpower and related resources to defend claims that they do not even recognize or embrace.

Since the regulation of international or foreign commerce had been addressed in other contexts, Madison passes on it here.

Among the third class of powers that Madison references are those involving “the harmony and proper intercourse among the States and these include:  “to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and securities of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads.”

It is difficult to look at this list of authorities without seeing the merchant class sympathies of Madison and the founders.  While it may seem incredible today to consider, Madison and Hamilton were not neutral on the question of whether the new government should be pro-business or not.  Explicitly empowering the federal government to coin money, establish standards for weights, prevent counterfeiting, enact bankruptcy laws as well as create a federal mailing system and construct federal highways make much more sense if one understands the founders’ sympathies for America being a mecca for entrepreneurship and related economic opportunity.

Madison makes clear that the power of interstate commerce was tied to international commerce and without interstate commerce power state and local governments would continue to have the authority to frustrate trade.   “A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.”

Madison recognizes commerce and business activity as crucial to the success of the American system.  Madison makes clear that even in the context of Indian relations that commerce with the tribes was a key issue that warranted national government attention.  “What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible.” Madison argues that with this issue handed completely and explicitly to the federal government the nation would get the benefits without undue restraint interfering.

Next Madison turns to the question of rules of naturalization.  Instead of the uniform system that we take for granted, Madison complained about the fact that each of the former colonies had adopted its own views for immigration policy which prevented the new government from deciding in a sophisticated way who it desired to become citizens and who it didn‘t. “The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is declared “that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce,” etc. …. The result is that some states essentially had the ability to confer upon individuals rights that they could exercise all across the nation based solely on the happenstance of which area they entered.

Just as Madison argued that it was in our nation’s interest to have a uniform immigration policy established by the Federal government one would imagine his displeasure at the failure of today’s federal government to maintain control over its on rules with regard to immigration policy.  Either because of complexity of compliance with immigration rules, a failure to construct adequate border barriers, limited personnel assigned to immigration enforcement etc, the federal government today is allowing a hodgepodge policy to form influenced more by where or how a person enters the United States instead of ascertaining in advance who should be allowed to enter.

Madison concludes the essay with a statement that reaffirms his view of the importance of business and commerce.  Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.

Thursday, June 24th, 2010

Horace Cooper is a legal commentator and is the Director of the Institute for Liberty’s Center for Law and Regulation.


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