In his final essay “review[ing] in detail all the articles composing the sum or quantity of power delegated by the proposed constitution to the federal government,” Madison’s Federalist No. 44 first considers certain “restrictions on the authority of the several states.” Such a discussion fits here because in some cases these restrictions exist for the sake of clearly transferring a particular power from the states, which previously enjoyed it, to the federal government, which will now possess it exclusively—for example, the “right of coining money.” The prohibition on states, in other words, is simply the flip side of a grant of power to the federal government.
Not so, however, with another class of restrictions Madison pauses to consider. Naming three kinds of acts prohibited by Article I, section 10, he gives a different explanation for the restraint: “Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation.” Natural justice itself is vindicated by these positive proscriptions. Notably, therefore, the first two of them are also enforced against the federal government in Article I, section 9 (the third of them is omitted because of the federal power to enact bankruptcy laws).
In the remainder of this essay, Madison goes over the same ground covered by Hamilton in No. 33, explaining that the necessary and proper clause of Article I, and the supremacy clause of Article VI, both state principles that are natural inferences from the establishment of this kind of constitution—one that knits the states together into a genuine nation, with a republican government over the whole people at its center. “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general powre to do a thing is given, every particular power necessary for doing it, is included.” And any contradiction of the supremacy of the nation over the states, where legitimate national power is being exercised, would be “an inversion of the fundamental principles of all government.”
In only one respect does Madison’s analysis of these matters differ even a little from Hamilton’s. But small as it is, the difference is interesting. Hamilton, in No. 33, had addressed the question, what recourse is there if the Congress presumes to exercise power beyond what is “necessary and proper” to carry out its legitimate authority? That is, what if the Congress enacts laws violating the Constitution? His answer, as we’ve seen, entirely omitted any mention of the federal judiciary as having any power over such questions—an interesting omission for the man generally accounted the godfather of the power now called “judicial review” (a matter we’ll come to in No. 78).
Here in No. 44, Madison raises the same question. And while in later years Madison was to express some skepticism about the scope of judicial power to “enforce” any and all provisions of the Constitution, here he, unlike Hamilton, includes the judiciary in his answer:
“In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort, a remedy must be obtained from the people, who can by the election of more faithful representatives, annul the acts of the usurpers.”
We might say the emphasis is still on the republican remedy, of the people as their own best “enforcers” of the Constitution. Without more discussion, it is hard to know just what Madison expects of the judges based on this passage, or how broad he envisions their role as being. But it’s something of a head-scratcher to see the authors of the Federalist switch places, as it were, with Hamilton neglecting judicial power and Madison highlighting it, even if only for a moment.
(For explanation of this recurring feature, see here.)