Antifederalist No. 44
WHAT CONGRESS CAN DO; WHAT A STATE CAN NOT
"DELIBERATOR" appeared in The Freeman's Journal; or, The North-
American Intelligencer, February 20, 1788.
A writer in the Pennsylvania Packet, under the signature of
A Freeman, has lately entered the lists as another champion for
the proposed constitution. Particularly he has endeavored to
show that our apprehensions of this plan of government being a
consolidation of the United States into one government, and not a
confederacy of sovereign independent states, is entirely
groundless; and it must be acknowledged that he has advocated
this cause with as much show of reason, perhaps, as the subject
will admit.
The words states, several states, and united states are, he
observes, frequently mentioned in the constitution. And this is
an argument that their separate sovereignty and independence
cannot be endangered! He has enumerated a variety of matters
which, he says, congress cannot do; and which the states, in
their individual capacity, must or may do, and thence infers
their sovereignty and independence. In some of these, however, I
apprehend he is a little mistaken.
1. "Congress cannot train the militia." This is not
strictly true. For by the 1st Article they are empowered "to
provide for organizing, arming, and disciplining" them; and tho'
the respective states are said to have the authority of training
the militia, it must be "according to the discipline prescribed
by Congress." In this business, therefore, they will be no other
than subalterns under Congress, to execute their orders; which,
if they shall neglect to do, Congress will have constitutional
powers to provide for, by any other means they shall think
proper. They shall have power to declare what description of
persons shall compose the militia; to appoint the stated times
and places for exercising them; to compel personal attendance,
whether when called for into actual service, or on other
occasions, under what penalties they shall think proper, without
regard to scruples of conscience or any other consideration.
Their executive officer may march and countermarch them from one
extremity of the state to the other-and all this without so much
as consulting the legislature of the particular states to which
they belong! Where then is that boasted security against the
annihilation of the state governments, arising from "the powerful
military support" they will have from their militia?
2. "Congress cannot enact laws for the inspection of the
produce of the country." Neither is this strictly true. Their
power "to regulate commerce with foreign nations and among the
several states, and to make all laws which shall be necessary and
proper for carrying this power (among others vested in them by
the constitution) into execution," most certainly extends to the
enacting of inspection laws. The particular states may indeed
propose such laws to them; but it is expressly declared, in the
lst article, that "all such laws shall be subject to the revision
and control of the Congress."
3. "The several states can prohibit or impose duties on
the importation of slaves into their own ports." Nay, not even
this can they do, "without the consent of Congress," as is
expressly declared in the close of the lst article. The duty
which Congress may, and it is probable will lay on the
importation of slaves, will form a branch of their revenue. But
this impost, as well as all others, "must be uniform throughout
the United States." Congress therefore cannot consent that one
state should impose an additional duty on this article of
commerce, unless all other states should do the same; and it is
not very likely that some of the states will ever ask this favor.
4. "Congress cannot interfere with the opening of rivers
and canals; the making or regulation of roads, except post roads;
building bridges; erecting ferries; building lighthouses, etc."
In one case, which may very frequently happen, this proposition
also fails. For if the river, canal, road, bridge, ferry, etc.,
be common to two states, or a matter in which they may be both
concerned, and consequently must both concur, then the
interference and consent of Congress becomes absolutely
necessary, since it is declared in the constitution that "no
state shall, without the consent of Congress, enter into any
agreement or compact with another state."
5. "The elections of the President, Vice President,
senators and representatives are exclusively in the hands of the
states-even as to filling vacancies." This, in one important
part, is not true. For, by the 2d article, "in case of the
removal of the President from office, or of his death,
resignation, or inability to discharge the duties of the said
office, the same shall devolve on the Vice President, and the
Congress may by law provide for the case of removal, death, etc.,
both of the President and Vice President, declaring what officer
shall then act as president, and such officer shall act
accordingly, until the disability be removed, or a president
shall be elected." But no such election is provided for by the
constitution, till the return of the periodical election at the
expiration of the four years for which the former president was
chosen. And thus may the great powers of this supreme magistrate
of the United States be exercised, for years together, by a man
who, perhaps, never had one vote of the people for any office of
government in his life.
6. "Congress cannot interfere with the constitution of any
state." This has been often said, but alas, with how little
truth-since it is declared in the 6th article that "this
constitution and the laws of the United States which shall be
made in pursuance thereof, and all treaties, etc., shall be the
supreme law of the land, and every state shall be bound thereby,
anything in the constitution or laws of any state to the contrary
notwithstanding."
But, sir, in order to form a proper judgment of the probable
effects of this plan of general government on the sovereignties
of the several states, it is necessary also to take a view of
what Congress may, constitutionally, do and of what the states
may not do. This matter, however, the above writer has thought
proper to pass over in silence. I would therefore beg leave in
some measure, to supply this omission; and if in anything I
should appear to be mistaken I hope he will take the same liberty
with me that I have done with him-he will correct my mistake.
1. Congress may, even in time of peace, raise an army of
100,000 men, whom they may canton through the several states, and
billet out on the inhabitants, in order to serve as necessary
instruments in executing their decrees.
2. Upon the inhabitants of any state proving refractory to
the will of Congress, or upon any other pretense whatsoever,
Congress may can out even all the militia of as many states as
they think proper, and keep them in actual service, without pay,
as long as they please, subject to the utmost rigor of military
discipline, corporal punishment, and death itself not excepted.
3. Congress may levy and collect a capitation or poll tax, to
what amount they shall think proper; of which the poorest taxable
in the state must pay as much as the richest.
4. Congress may, under the sanction of that clause in the
constitution which empowers them to regulate commerce, authorize
the importation of slaves, even into those states where this
iniquitous trade is or may be prohibited by their laws or
constitutions.
5. Congress may, under the sanction of that clause which
empowers them to lay and collect duties (as distinct from imposts
and excises) impose so heavy a stamp duty on newspapers and other
periodical publications, as shall effectually prevent all
necessary information to the people through these useful channels
of intelligence.
6. Congress may, by imposing a duty on foreigners coming
into the country, check the progress of its population. And
after a few years they may prohibit altogether, not only the
emigration of foreigners into our country, but also that of our
own citizens to any other country.
7. Congress may withhold, as long as they think proper, all
information respecting their proceedings from the people.
8. Congress may order the elections for members of their
own body, in the several states, to be held at what times, in
what places, and in what manner they shall think proper. Thus,
in Pennsylvania, they may order the elections to be held in the
middle of winter, at the city of Philadelphia; by which means the
inhabitants of nine-tenths of the state will be effectually (tho'
constitutionally) deprived of the exercise of their right of
suffrage.
9. Congress may, in their courts of judicature, abolish
trial by jury in civil cases altogether; and even in criminal
cases, trial by a jury of the vicinage is not secured by the
constitution. A crime committed at Fort Pitt may be tried by a
jury of the citizens of Philadelphia.
10. Congress may, if they shall think it for the "general
welfare," establish an uniformity in religion throughout the
United States. Such establishments have been thought necessary,
and have accordingly taken place in almost all the other
countries in the world, and will no doubt be thought equally
necessary in this.
11. Though I believe it is not generally so understood, yet
certain it is, that Congress may emit paper money, and even make
it a legal tender throughout the United States; and, what is
still worse, may, after it shall have depreciated in the hands of
the people, call it in by taxes, at any rate of depreciation
(compared with gold and silver) which they may think proper. For
though no state can emit bills of credit, or pass any law
impairing the obligation of contracts, yet the Congress
themselves are under no constitutional restraints on these
points.
12. The number of representatives which shall compose the
principal branch of Congress is so small as to occasion general
complaint. Congress, however, have no power to increase the
number of representatives, but may reduce it even to one fifth
part of the present arrangement.
13. On the other hand, no state can call forth its militia
even to suppress any insurrection or domestic violence which may
take place among its own citizens. This power is, by the
constitution, vested in Congress.
14. No state can compel one of its own citizens to pay a
debt due to a citizen of a neighboring state. Thus a Jersey-man
will be unable to recover the price of a turkey sold in the
Philadelphia market, if the purchaser shall be inclined to
dispute, without commencing an action in one of the federal
courts.
15. No state can encourage its own manufactures either by
prohibiting or even laying a duty on the importation of foreign
articles.
16. No state can give relief to insolvent debtors, however
distressing their situation may be, since Congress will have the
exclusive right of establishing uniform laws on the subject of
bankruptcies throughout the United States; and the particular
states are expressly prohibited from passing any law impairing
the obligation of contracts.
DELIBERATOR