Constitution Sunday: “Publius,” The Federalist XLIV [James Madison] Part I

New-York Packet

January 25, 1788

In a country comprised of states, there is bound to be overlap between what those states’ governments may do and what the federal government may do. But the draft Constitution clarified those boundaries and identified many of the rights that states have and don’t have. Crucially, the Constitution sets limits for what states may do to hinder their economies and to prosecute criminal behavior.

Article I, Section 10, Clause 1 of the Constitution states: “No state shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal, coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder; ex post facto Law; or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”

Bills of attainder and ex post facto laws are creatures from the past—more specifically, from legislatures of the past. Bills of attainder came from legislatures declaring that a person is guilty—not charged, not indicted—of a crime without a trial and without judge or jury. With a legislature capable of issuing such a bill, and with legislatures subject to influencing and bribery, there could be little faith in a fair system of justice. Similarly, ex post facto laws—ones that retroactively make conduct criminal and punishable—serve only to undermine faith in the system. Then, in addition to protecting against legislatures supplanting criminal laws, this clause of the Constitution prohibits those state laws that impair the enforceability and potential for free contracts as those laws—while perhaps well-meaning—end up doing more harm than good.

James Madison, in this Federalist paper, recognized that bad policy for the country is not only easy to find but dangerous, and he wrote that the “sober people of America are weary of the fluctuating policy” throughout the country as it had caused “sudden changes and legislative interference in cases affecting personal rights.” The legislation had given jobs to speculators but ensnared the “more industrious and less informed part of the community.” Poorly conceived laws would harm all people but especially those most vulnerable. What was needed was “some thorough reform” that would “banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.” Limiting states’ rights to preserve the broader economy—and the chance for people to earn a fair, decent living—was necessary.

What wasn’t necessary was having to explain why the last portion of this clause of the Constitution was needed: everyone, after the history with England, knew that the government—with its primary objective of making people more equal and prosperous—had no business in doling out titles of nobility and giving people, by virtue of their blood and nothing more, a higher status or class in society.

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