The Federalist No. 42
The Powers Conferred by the Constitution Further Considered
New York Packet
Tuesday, January 22, 1788
[James Madison]
The powers included in the third class are those which provide for
the harmony and proper intercourse among the States.
Under this head might be included the particular restraints
imposed on the authority of the States, and certain powers of the judicial
department; but the former are reserved for a distinct class, and the latter
will be particularly examined when we arrive at the structure and organization
of the government. I shall confine myself to a cursory review of the remaining
powers comprehended under this third description, to wit: 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 secureties 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.
The defect of power in the existing Confederacy to regulate
the commerce between its several members, is in the
number of those which have been clearly pointed out by experience. To the
proofs and remarks which former papers have brought into view on this subject,
it may be added that without this supplemental provision, the great and
essential power of regulating foreign commerce would have been incomplete and
ineffectual. 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 tranquillity. To those who do not view the question through
the medium of passion or of interest, the desire of the commercial States to
collect, in any form, an indirect revenue from their uncommercial neighbors,
must appear not less impolitic than it is unfair; since it would stimulate the
injured party, by resentment as well as interest, to resort to less convenient
channels for their foreign trade. But the mild voice of reason, pleading the
cause of an enlarged and permanent interest, is but too often drowned, before
public bodies as well as individuals, by the clamors of an impatient avidity
for immediate and immoderate gain.
The necessity of a superintending authority over the
reciprocal trade of confederated States, has been
illustrated by other examples as well as our own. In Switzerland, where the
Union is so very slight, each canton is obliged to allow to merchandises a
passage through its jurisdiction into other cantons, without an augmentation of
the tolls. In Germany it is a law of the empire, that the princes and states
shall not lay tolls or customs on bridges, rivers, or passages, without the
consent of the emperor and the diet; though it appears from a quotation in an
antecedent paper, that the practice in this, as in many other instances in that
confederacy, has not followed the law, and has produced there the mischiefs
which have been foreseen here. Among the restraints imposed by the Union of the
Netherlands on its members, one is, that they shall
not establish imposts disadvantageous to their neighbors, without the general
permission.
The regulation of commerce with the Indian tribes is very
properly unfettered from two limitations in the articles of Confederation,
which render the provision obscure and contradictory. The power is there
restrained to Indians, not members of any of the States, and is not to violate
or infringe the legislative right of any State within its own limits. 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. This is not the only case in which the articles of
Confederation have inconsiderately endeavored to accomplish impossibilities; to
reconcile a partial sovereignty in the Union, with complete sovereignty in the
States; to subvert a mathematical axiom, by taking away a part, and letting the
whole remain.