Friday, December 23, 2005

The Federalist No. 41 - General View of the Powers Conferred by The Constitution

The Federalist No. 41
General View of the Powers Conferred by The Constitution
Independent Journal
Saturday, January 19, 1788
[James Madison]

To the People of the State of New York:
THE Constitution proposed by the convention may be considered under two general points of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the States. The SECOND, to the particular structure of the government, and the distribution of this power among its several branches.


In the formative days of our nation some very wise and powerful men sat down together and hammered out an agreement on the structure of government and sharing of power that was to follow. This effort was completely new territory. These men did not have the luxury of sitting in an ivory tower somewhere working out theoretical models of democracy and government either. They had the very real concerns of their own states and a new nation pressing on them at the time as well as the factionalism, personal ambitions, desires, and foibles of men to contend with.

Under the first view of the subject, two important questions arise: 1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States?



In the very basic levels of understanding of the new form of government they were creating they considered the distribution of power and constraints on powers to be foremost concerns. They were concerned about:

1. the sum or quantity of power which it vests in the government
2. the restraints imposed on the States
3. the distribution of power among branches of government
4. whether powers of the federal government were unnecessary or improper
5. whether the entire mass of them be dangerous to the jurisdiction of the States

Their very reasonable concerns were about the proper allocation of power to meet the needs of a nation and the controls or restraints upon that power to prevent usurpation and maintain balance among the competing interests of people, states, and nation.

Is the aggregate power of the general government greater than ought to have been vested in it? This is the first question.


The First question then is have we created a monster? Is the Federal government too strong? In other papers we see the same question applied to the Executive branch.

It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end.


It seems here, as it seems in the prelude to several of the other papers, that the founders had to deal with opposition that was less than candid in their arguments. Is there nothing new under the sun?

Madison argues here that it is necessary that the government be vested with particular powers in order to perform it's duties. Federalist #41 deals mainly with military powers. In today's debate over NSA, wiretapping, spying, and FISA the Bush administration apologists argue as Vice President Dick Cheney has stated The president "needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy...."

Few there are that would argue that the federal government and the President should be constrained from performing their duties to protect and defend The Constitution of the United States of America and the people of this nation. The argument today is that defending The Constitution means obeying the law and The Constitution itself. The right wing noise machine is less than candid in it's arguments that somehow obeying the FISA law and the 4th amendment would stop the government from being able to properly defend the government. A candid, open, and honest discussion about what constitutes the "necessary means of attaining a necessary end" is not too much to ask, is it?

They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made.


And today we have the willful and ignorant opposite. They chose to ignore the obvious abuses and be unwilling to obey the law due to some minor inconveniences such as judicial review and congressional oversight. Review and oversight that can by law be done after the fact and do not in any way delay or restrain the governments ability to do it's job.

This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking:


See previous paragraph on the effects of the right wing noise machine. I think of the line from the movie The American President where Michael Douglas talks about these being serious times requiring serious people. I am thankful that we had such men during our formation as a nation. We seem to have so few in the halls of power (both in an out of government) today.

These are serious times and we as a nation need to be able to have a serious conversation about the balancing and distribution of power and rights between people, states, and federal government in order to provide the "necessary means of attaining a necessary end" in matters of war, terrorism, poverty, and natural disasters. Sadly, what we have are boundless fields of rhetoric, declamation, inflamed, unthinking passions, and the purposeful incitement of prejudices of the misthinking.

but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good;


This is a conversation we on the left often dance around but rarely have in an open and candid manner. We bitch at each other but how often are we capable of putting emotion and stubbornness aside in order to honestly determine the fine balance point of the greater good in relation to the desire of the perfect and the avoidance of the greater evil? How often does that conversation instead focus on charges and claims of a black and white choice between the lesser evil and the perfect good? So much of life is a constantly moving balance point. Can we put aside claims and counter claims long enough to find that common ground as close to the greater good as we can get it without losing it altogether?


and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment.


A strong argument for checks and balances, for oversight and review. No branch, no elected official, has carte blanche to do whatever they themselves think is prudent and necessary. Every step of the way in creating The Constitution and creating this nation our founders discussed the absolute requirement for safeguards against the abuse of power.

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