The Federalist Papers | Study Guide

Alexander Hamilton

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The Federalist Papers | Essays 40–42 | Summary



Essay 40: On the Powers of the Convention to Form a Mixed Government Examined and Sustained

In this paper, Madison responds with care and precision to one of the Anti-Federalists' most disturbing charges: that the convention was not authorized to draw up a brand-new framework of government but merely to amend or modify the Articles. Madison reviews the Annapolis Convention (September 1786) and the recommendation of Congress (February 1787) as two sources of the convention's authority. The Annapolis Convention had declared the Constitution of the federal government will be "adequate to the exigencies of the Union." Congress had spoken of establishing "a firm national government ... adequate to the exigencies of government and the preservation of the Union." Analyzing the language carefully, Madison concludes the states would never have appointed a convention from which they did not expect substantial reform.

Madison declares the major principles of the new Constitution are not, in fact, absolutely new but rather an expansion of principles that are found in the Articles. The difference is that, in the form these principles took in the Articles, they were feeble and confined.

The convention did recommend one major change, however: it declared that the approval of 9 states, not of all 13, would be sufficient to ratify the Constitution. Oddly enough, the new document's critics rarely mention this fact. Madison argues firmly that the delegates to the convention did not exceed their powers but rather worked energetically for the happiness and well-being of Americans.

Essay 41: General View of the Powers Conferred by the Constitution

Has the new Constitution vested the federal government with too much power? Madison sets out to answer this question. Once again, in an appeal to the "good sense of the people of America," he reminds his audience the overall goal should be "the greater, not the perfect, good."

The new Constitution empowers the national government to declare war, issue letters of marque (authorizing privateers to attack enemy vessels), provide armies and fleets, regulate and call up the militia, impose taxes, and borrow money. Granting power to government may be risky, Madison concedes, but it is even riskier to hobble government by unduly confining its powers. A similar tension underlies the issue of standing armies.

In discussing the major classifications of powers granted to the national government, Madison recapitulates many of the arguments presented in other essays: see especially Essays 8 and 24 (armies), Essay 26 (budget terms), and Essay 23 (militia).

Essay 42: The Powers Conferred by the Constitution Further Considered

In the first part of this essay, Madison deals with the ultracontroversial topic of slavery. Although Madison describes slavery as "barbarism" and as an "unnatural traffic," he supports with his usual realism the Constitution's proviso that Congress may choose to ban the importation of slaves as of the year 1808, after a 20-year "waiting period."

In this paper, Madison also highlights the national government's power to regulate relations between the states. This power is especially important with respect to interstate commerce. Were the federal government to lack such power, widespread disorder and confusion would result.


In all three of these essays, Madison devotes considerable space and energy to the interpretation of language. In Essay 40, for example, he closely examines two texts relating to the authority of the Constitutional Convention: the resolution of the Annapolis Convention and the commission by Congress. Ever methodical, Madison cites two general "rules of construction," or axioms of interpretation: first, that each part of an expression should make a distinct contribution to the overall meaning; and second, that where cases of inconsistency occur among the parts, the less important should yield to the more important. Using anaphora ("Let them declare ... Let them declare"), Madison issues a rhetorical challenge. Was it more important for the convention delegates to frame a document conducive to the people's happiness and disregard the Articles, or was it more important to omit an adequate government and preserve the Articles?

Of course, if the question is phrased this way, most people would answer it is more important to produce a good constitution than to worry about the Articles. But Madison fortifies his argument later in Essay 40 by asserting that the framers of the new Constitution did not really disregard the Articles at all, since the provisions of the new document are not absolutely new but rather an expansion of principles found in the Articles. In this ingenious fashion Madison is able, so to speak, to eat his cake and have it too! (After all, in Essay 37 he had declared about the Constitutional Convention, "The novelty of the undertaking immediately strikes us.")

In Essay 41, Madison also displays a proclivity for the careful analysis and interpretation of language. In the penultimate paragraph of the essay, he dissects the claim of Anti-Federalists that the new Constitution's empowerment of Congress in Article 1, Section 8 is too sweeping. Madison insists the particular enumeration of powers in that section should be construed as a perfectly natural explanation of the general statement that introduces it.

In addition to his fondness for linguistic analysis, Madison displays a penchant for epigram in Essay 41: for instance, the pithy statement "A bad cause seldom fails to betray itself," or the concluding barb, "How difficult it is for error to escape its own condemnation!"

Essay 42 offers another illustration of Madison's interpretive scrutiny of language. This time he trains his sights on a section of the fourth Article of Confederation, which refers to "free inhabitants," "free citizens," and "people"—all apparently bearing the same meaning. Madison makes an elaborate effort to sort out what he calls a "remarkable" confusion of language.

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