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?

Click through to read the rest at The 10,000 Things

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