Federalist No. 45

Federalist No. 45: "The Alleged Danger From the Powers of the Union to the State Governments Considered", is an essay by James Madison. It is the forty-fifth of the "Federalist Papers", and was published on January 26, 1788 under the pseudonym Publius. Madison argues that the strength of the federal government under the proposed United States Constitution does not pose a danger to the individual states, a major concern of the Anti-Federalists.

Invigoration of original powers

Madison writes that the new Constitution does not in principle enlarge the powers of the Federal government, but merely renders that government more effective in carrying out its existing duties:

Central to administering these powers, Madison argues, is the power to tax. Further, he states that this power has precedent in the Articles of Confederation:

Federal powers are few and defined

The idea that the reach of the federal government would be restricted to a few enumerated powers is articulated by Madison in Federalist No. 45:

Alexander Hamilton relied on the same view when later arguing, in Federalist No. 84, against inclusion of a Bill of Rights in the Constitution. Hamilton was wary of articulating specific restrictions on federal power, for he felt it was clear that the default position of the federal government was an "absence of power", and any specific power existed only by grant from the Constitution:

These observations foreshadow passage of the Tenth Amendment to the United States Constitution, ratified three years later, which codified the doctrine of enumerated powers:

The principle expressed in Federalist No. 45 was echoed a century later by Supreme Court Justice Joseph Story:quote|The Constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of general and unlimited powers.|Justice Joseph Story (1891) [cite book
last = Story
first = Joseph
authorlink = Joseph Story
title = Commentaries on the Constitution of the United States: with a preliminary review of the constitutional history of the colonies and states before the adoption of the Constitution, 5th Edition
publisher = Little, Brown, and Company
date = 1891
location = Boston
pages = 663 § 909
url = http://books.google.com/books?id=Ge-mHt2-OqwC&printsec=toc#PRA3-PA663,M1]

Perhaps vindicating Hamilton's opinion that, at least in the case of the Tenth Amendment (an original component of the Bill of Rights he rallied against), articulating restrictions of federal power were unnecessary, the Supreme Court found in United States v. Sprague (1931) that

quote|The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the states or to the people. It added nothing to the instrument as originally ratified...|Justice Owen Roberts (1931) [cite court
litigants = United States v. Sprague
vol = 282
reporter = U.S.
opinion = 716
url= http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=282&invol=716]

Nonetheless, the promise of limited federal power eventually succumbed to the pressures of expanding federal power in the 20th century, most notably during the New Deal era and President Franklin D. Roosevelt's "court packing" scheme.cite journal
last = Pilon
first = Roger
title = How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees
journal = Cato Policy Analysis
volume = 446
pages = 1–19
publisher = Cato Institute
location =
date =
url = http://www.cato.org/pubs/pas/pa446.pdf] The turning point in Supreme Court jurisprudence on the subject is widely seen as United States v. Butler (1936). Although that decision struck down provisions within the Agricultural Adjustment Act as violating the Tenth Amendment, the court found that

quote|...the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.|Justice Owen Roberts (1936)cite court
litigants = United States v. Butler
vol = 297
reporter = U.S.
opinion = 1
url= http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=297&page=1#1]

This represented the first time the Supreme court had determined whether the Taxing and Spending Clause of the Constitution represented an independent grant of power to provide for the general welfare of the United States. They found it did, thus setting the stage for massive increases in federal spending, and consequent power, during the latter half of the 20th century.

By 2002, Madison's view in Federalist No. 45 was regarded as quaint and unpopular, for a literal interpretation would indict much of the federal government's activities at that point as unconstitutional. As a consequence, at the dawn of the 21st century, Madison's view is all but unknown among Americans.

Notes