1. See, Rossiter, C., The Federalist Papers (New York: New American Library, 1961Google Scholar; hereafter cited FP, followed by author, paper number, and page): FP, M., 10:78–79; 49:314–15; H., 59:360; M., 63:385; H., 71:432. Part of my claim, demonstrated below, is that at least in the Federalist Papers the three authors agree on the basic theses of this essay. Therefore in the text I employ their, and hence my, name of preference, the “new” Publius. FP 14:104.

2. FP, H., 1:33.

3. FP M., 10:80, 51:322, 52:327–28, 56:346; H., 35:214–17; M., 10:82, 57:350, 63:384, 387. The question of the kind of republicanism adapted by our Constitution is the subject of voluminous literature. For an excellent review and critique of that literature, see Pangle's, Thomas recent book, The Spirit of Modem Republicanism (Chicago: University of Chicago Press, 1988)Google Scholar, especially Part One and Part Two, chap. 5, “The New ‘Publius'.” Pangle claims that Publius and our Constitution retained in a “severely qualified” way and not even as “one of the highest goal(s),” Republican self-government “as an end” (p. 45). Or again, it is “somewhat less … an end and considerably more … a means” (p. 53). See also pp. 73, 115, 117–19. Pangle then, correctly, proceeds to argue that if Republican self-government is an end, it is in contradiction with the most “fundamental principles” of American liberal political thought embedded in the “New Basis of ‘Legitimate Government'”: “Natural Rights,” equality, and the establishment of government — and hence of the public or political realm as a whole — as an artificial instrument by consent, or social contract (pp. 112–19). From this perspective, it would appear irrational for anyone to participate in politics, except for self-interested, instrumental, reasons. For an excellent account of the problem of participation in public life, of public-spiritedness, in America, given our fundamental roots in the principles of Hobbes and Locke, see Mansfield, Harvey C. Jr., “The Prestige of Public Employment” in Public Employee Unions. Institute for Contemporary Studies. 1976, pp. 35–49.Google Scholar I question Pangle's interpretation of Publius as holding Republican self-government as an end in itself to any degree in an as yet unpublished essay, “The Spirit of Limited Government and Publius' Novel Republicanism.”

4. See, for instance, Black, Hugo, “The Bill of Rights,” in Taking The Constitution Seriously, ed. Mcdowell, Gary (Dubuque, Iowa: Kendall/Hunt, 1981), pp. 253–66.Google Scholar

5. FP, M., 57:352–53. See notes 31–33. Compare with Locke, John, Two Treatises of Government, ed. with intro. Cook, Thomas, (New York: Hafner Publishing Co., 1947), the Second Treatise, chap. 4.Google Scholar

6. FP, M., 48:309, 130; 51:322; H., 73:443, 78:465, 466, 469, 470. See also H. Storing's excellent account of the three purposes of separation of powers: effective governmental action, effective governmental inaction, both informed with deliberation. Storing, Herbert J., What The Anti-federalists Were For (Chicago: University of Chicago Press, 1981), pp. 60–62.CrossRefGoogle Scholar

7. FP, H., 26:170, 1:35.

8. FP, H., 1:35; J., 4:44; H., 6:53–54, 6–8, 9:71; M., 10:79, 83, 84, 14:99; H., 15:110–11, 21:139, 24: 156–57, 26:168–70, 27:175, 28:178, 31:195–97; M., 41:255, 45:288, 51:322–25, 62:380–82, 63:387, 66:401.

9. FP, H., 31:193, 23:153, See also M., 38:240, 62:377 and especially 41:255, 45:255–58 on “discretion” or “prudence.” Compare with his “axioms” at 44:285 and 40:248.

10. FP, H., 34:207; M., 41:257; H., 31:195, 23:154, 153.

11. FP, H., 23:153, 154, 34:207, 23:153, 13:97, M., 41:257, H., 36:223, 31:194, M., 41:256, 257, 258, H., 24:162, 25:170. Hamilton even suggests that “implied in National defense” is the “necessity” of also delegating “judgment” as to “means,” that is, that “power equal to every possible contingency.” That “confidence” must be placed “somewhere in government.” Compare FP, H., 26:168, 170, M., 41:255 bottom, 256 top.

12. FP, H., 31:194, 23:155, 156, M., 41:256, 43:279, H., 25:167, 31:194, M., 41:256, 45:289, H., 70:423, emphasis added. In America, as in England, but by different techniques, national “force” can be “directed to any object which the public good requires” (FP, M., 14:101). For instance, the “harmony and proper intercourse among the states” is placed among the general “objects” of government which Madison derives from examination of the enumeration. In accordance with the doctrine of proportionate means, Publius correctly concludes that the national government may properly prohibit “whatever” might even “have a tendency to disturb... harmony” and, even further, properly require anything (or stop at “nothing”) which even “tends” to facilitate “intercourse among the states.” FP, H., 80:477, M., 42:271.

13. FP, H., 31:193–94.

14. FP, H., 23:155, M., 41:257. According to Hamilton, “proper” exertions are those which do not violate the “most obvious rules of prudence and propriety” among which is included the rule that one “confer... a degree of power commensurate to the end.“ FP, 23:155. The doctrine of proportionate means is “proper,” a “rule(s)” of “prudence and propriety.”

15. FP, M., 43:279, 45:289, H., 28:180, M., 40:248, 45:289, 40:248, 253, 45:289, 43:279, 40:248, 253, 44:285.

16. FP, M., 40:248, 44:285, 43:279.

17. FP, M., 23:152,153, 23:156, 34:207, 31:193,194–95,197, M., 41:255, 255–58, emphasis added. After completing my basic research, I came across an excellent, comprehensive, commentary on The Federalist Papers in David Epstein, , The Political Theory of the Federalist (Chicago: University of Chicago Press, 1984)Google Scholar. In one pa of one chapter Espstein deals with our theme. He also concludes, by a different line of reasoning on some of the relevant evidence, that “wherever the end is required, the means are authorized”; that the proper protection of peace requires no “limitation” on the “extent and variety” of means; and that Publius, like Locke, ultimately advocates unlimited, which is not to say “arbitrary,” governmental powers (ibid., pp. 43, 36, 44, 36). However, Epstein does not note the evidence, cited above, and hence does not follow Publius in his application of the doctrine of proportionate means to the “ends other than safety”; and he does not address the question of whether proper acts of legislative “prerogative” are constitutional (ibid., pp. 42, 50). Epstein does see the apparent contradiction between the doctrine of proportionate means and “any limits on government.” And he also claims to show “how” that contradiction “can be reconciled” (ibid., p. 36). That reconciliation requires an account of the enumeration and the expressed restrictions in relation to the doctrine of proportionate means. Epstein does not provide such an account. My account can be found in the text pp. 564–68, 571–74. Other significant difference between myself and Epstein will be noted below.

18. Compare FP, M., 39:245, where “objects” refers to “purposes” with 37:227–29 and 46:294 where “purposes” refers to “objects,” pp. 295, 296. See also FP, M., 45:292–93; and H., 23:155 where “different provinces... of power” refers to different “authority” or “jurisdiction” of the general government and the states over different “objects”. In his justly famous book, Politics and the Constitution (Chicago: University of Chicago Press, 1953)Google Scholar, William Crosskey notes, “the attempt to confuse ‘objects’ and ‘powers' (was) begun by Madison and Hamilton in The Federalist, as a means of helping the Constitution over the hump in York... “ (1:509). However, Publius always indicates, in context, when he means powers and when he means purposes by the term objects. The same is true of a third key term not noted by Crosskey in this regard, namely “Cases”. See the next note.

19. Compare FP, M., 39:245; H., 83:497; M., 14:102; H., 32:198; M., 39:245; H., 84:513; M., 41:263, 264. “Cases” can refer to purposes or powers in any given context. Contrary to Crosskey's interpretation, Madison consistently and correctly defended — throughout his career —the Constitution against the charge that it established an unlimited or complete national government. See, for instance, Madison's, accounts on the following pages in Marvin Meyers's excellent book, The Mind of the Founder (Brandeis: Brandeis University Press, 1981), pp. 79–81, 170, 238–42, 255, 308–9, 358–67Google Scholar. Supplement with the following pages in Farrand, Max, The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1966), 3: 473–75, 517–18, 524Google Scholar. Compare my account above with Crosskey, esp. pp. 363,373–74, 378, 390, 393, 401, 405–10, 515–16, 557–58.

20. Compare FP, M., 39:245, 14:102; 40:250; 39:245; H., 27:177. See note 19 above. Madison says that “we have seen that… the general powers are limited” (40:250). “We have seen” refers to the immediately preceding paper where Madison claims that the general government is limited in the sense that its “jurisdiction extends to certain enumerated objects (clearly defined in context to mean “purposes”) only” (39:245). See notes 18 and 19 above. This, of course, means that the essential meaning of constitutional, limited, government is a government with a limited number of constitutionally stated ends agreed upon by consent, the proper mode of establishing limited government.

21. FP H., 84:513.

22. FP, H., 84:513, 4:46, 6; 17:120; 46:295.

23. FP, H., 39:245; H., 83:497; H., 84:515; M., 15:104; J., 2:38–39; 43:279, 40:253; 28:180; H., 69:422. The primary meaning of “happiness” is “prosperity” (FP, J., 2:37, 40, 41). Chief among the “Blessings of Liberty” is “commerce” (FP, M., 62:381–82).

24. FP, M., 40:251; 14:102; II., 9:75, 16:112, 17:118, 31:195. Hence, Madison claims in 45 that the powers of the general government are “few and denned” whereas the powers of the states are “numerous and indefinite” because states, singly or especially as an aggregate, can extend their jurisdiction to “all the objects” which are not the enumerated ends of the national government, pp. 292–93. Compare with Madison's “Speech in the House of Representatives,” 8 June 1789, in Meyers, , Mind of the Founder, p. 170Google Scholar, where Madison shows himself to mean by general “Powers… enumerated,” powers that are “circumscribed,” that is “directed to particular objects” which are “limits” in the sense of “special purposes.” Government retains “discretionary power with respect to… means.” State governments can be oriented on “more extended objects”.

25. FP, M., 46:294; H., 23:155, 31:196, 32:197–98. See note 18 above. Compare M., 10:79, 83–84 and H., 27:175 on state “injustice” and “religion.” Each sovereign has no direct jurisdiction over, cannot extend itself into, the ends of the other: each must “abstain” from other's end (FP, H., 34:707, 36:221; M., 14:102).

26. Publius claims that we were “one people,” “one united people” at least as regards “general purposes” or “principles of government” before the Constitution was proposed or adapted (FP, J., 2:38–39). Compare with M., 39:240–41. We were enlightened to at least the proper origin and ends of government and the proper consequences for improper government.

27. A people enlightened to the proper ends of government, the protection of certain of their individual rights, will become attached to — affectionate toward — effective limited government and will respond with threats of assassination or revolution to sufficiently improper government, government oriented on improper ends, or on proper ends but only for the rulers or the few. Compare FP, H., 28:180, 25:167; M., 51:324, 57:350; H., 60:372; 68:414. Compare especially H., 17:118–20 with 27:174–77. Whether a people can remain satisfied with a government that cannot properly or directly provide an atmosphere for the emergence of nobility or practical excellence is a question which may point to the limits of constitutional government.

28. FP H., 84:514–15; 31:194, 197. Whether a people who understand that government is an instrumental artifact the purpose of which is to secure equally their preexisting, natural, rights can protect itself from succumbing to what would come to be called “soft despotism” depends entirely upon the truth of the early modern answer to the question of human nature. For instance, Hobbes thought that once peace was established man would still engage in a ceaseless struggle for power for enhanced security and Locke thought man would employ peace and liberty for what has been called a joyless quest for joy. Locke (Cook), chap. 5: 48, 49, 37, 41, 46, 44, 48, 50. Given our individualistic, striving, nature, citizens must —in so far as possible —trust only in themselves and their own efforts in these regards, not others, especially government. “Soft despotism” presumes a vision of human nature alien to early modern political thought.

29. See. FP, M., 10:78–79, on the impracticality and undesirability of the attempt to use direct political means to give “every citizen the same opinions” concerning “religion,” “economics” and even “concerning government.” Whether a limited government can maintain itself and its ends for most or all in the long run without relying on a people's sense of duty, including political duty, understood as an end in itself, is the political question to address to the founders of limited government. See Locke, , Second Treatise, chap. 11: 139Google Scholar, on the ultimate principled ground of dut in Liberalism. See note 3 above.

30. FP, H., 33:202.

31. FP, H., 33:201–202, 78:465; M., 47:303–3–4; “it surely does not follow that because (the Constitution has) given the power of making laws to the legislature, that therefore (it) should likewise give them the power to do every other act of sovereignty... “ (FP,J., 64:394); “the essence of the legislative authority is to enact laws” (emphasis added, FP, M., 75:450).

32. FP H., 33:201–202.

33. Compare FP, H., 62:381, 83:505, 78:470–71, 75:450, 78:465; M., 57:352; H., 80:478; 78:465, 470; M., 57:352–52.

34. FP, H., 33:703; M., 44:285. Compare with Crosskey's account of the socalled sweeping dimension of this clause, Politics and the Constitution, 1: 391–93, 370, 372, 380–81, 383, 389, 391–93.Google Scholar

35. FP, H., 33:203.

36. FP, H., 33:203, 204, 203; M, 44:285. “Propriety” is determined by the “nature” of power which refers, in context, to its proper “exercise” not to its existence. That which is “not warranted” or is improper refers more to “miscontrue(ing)” or “enlarge(ing)” power beyond its proper jurisdiction than it does to the existence of a given power.

37 . FP, H., 33:203.

38. FP, H., 34:207; M., 46:294; H., 36:221, 23:155, 27:177; M., 37:227–29; 44:286; 39:245. See also H., 9:76 and note 18 above.

39. McCulloch v. Maryland 17 U.S. (Wheat); 4L. Ed. 579 (1819) or see Rossum, Ralph A. and Tarr, G. Allan, American Constitutional Law (New York: St. Martin Press, 1983), p. 118.Google Scholar

40. FP, M., 44:285.

41. FP, M., 44:284, 285, 41:262, 264. Madison and Hamilton agree on the meaning of the constitutional phrase, the “carrying into execution” of a power. It does not mean to merely exercise or employ a power. It means, rather, to completely produce and maintain the proper “effect” of the power, which is to say, the “full accomplishment of its objects,” ends or “trusts.” Compare FP, H., 33:207, 31:196 top, 194 bottom.

42. FP, M., 44:285. Hamilton agrees that the clause is also oriented on those “declared” powers which include a stated duty to secure an end. See, in order, 33:203 top, 29:183 bottom, 29:182 top, 31:194 bottom - 195 top, 26:168, 29:187 end.

43. FP, M., 44:285. Because the legislative powers are “more extensive” and hence “less susceptible of precise limits” it is a “question of real nicety” when Congress has gone “beyond the legislative sphere” (M., 48:310). Hamilton agrees that the clause authorizes even new particular powers beyond the enumeration and hence is not limited to authorizing only specific implied means to exercise the expressed particular powers. Compare FP, 25:163, 26:168, 23:153, 29:182–184. “Parchment provisions,” even in the form of enumeration, are sometimes “unequal … to a struggle with public necessity” (FP, H., 25:167). Hence, “rules” or “maxims” of legal interpretation which produce constructions on the basis of the premise that a positive, limited enumeration is exhaustive are “inapplicable to a constitution of government” (FP, H., 25:167, 83:496–97). In fact, the proper rule is that “silence” authorizes all that is not expressly denied. FP, H., 26:170, 25:167, 168, 24:160, 25:167, 26:171, 33:200–201, 78:466, 81:482–483, 80:488, 84:510–515. “Proper” in the necessary and proper clause may refer to all that is not expressly denied. If so, the question of the ultimate compatibility between the doctrine of proportionate means and the expressed restrictions must be addressed. See Section six in the text.

44. Madison, presented this view of the clause in his “Speech in Congress,” 8 06 1789Google Scholar, found in Meyers, , Mind of the Founder, p. 170.Google Scholar Note that the object of the clause, “powers … enumerated,” comes to mean “powers” that are “circumscribed” which comes to mean powers “directed to particular objects” or “special purposes” or the ends of government which constitute “limits.” Chief Justice Marshall generally agrees with Madison in McCulloch v. Maryland though he does not appear to have rendered his decision on the basis of this very “wide” view of the clause. See especially Rossum, and Tarr, , American Constitutional Law, pp. 117, 120.Google Scholar Madison did not criticize Marshall's conclusion. He merely feared that Marshall's interpretation of the “necessary and probable” clause would allow constitutional government to pursue any new ends or “objects” it wished. Madison interprets Marshall to mean to give, in effect, “unlimited discretion” as to implied means to the legislature which is not subject as regards those means to judicial review. The legislature could then proclaim as new means to given ends what it intended as new ends. See Madison, in Meyers, , Mind of the Founder, pp. 358–62.Google Scholar Epstein also concludes that the clause is oriented directly on ends and only precludes those useful means which are improper and allows all necessary means even if improper and all useful means that are proper (Political Theory of the Federalist, p. 44).There are several problems with Epstein's position. His view rests upon but never defines Madison's definition of “proper.” If propriety refers to that which is not expressly denied, as Epstein suggests, then he must reconcile limits on governmental power that follow from that definition with his account of the doctrine of proportionate means which he claims authorizes the suspension of such restrictions if necessary, as opposed to merely useful, for proper ends (ibid., pp. 42, 43, 50). Further, if as Epstein claims, the clause does authorize such acts, then he must, but does not, conclude that it is constitutional if necessary “to act outside of the … constitutional limits” to secure proper ends (ibid., p. 50). Lastly, one holding such a view of the clause must at least consider the possible purposes of enumeration other than limitation. See my next note.

45. Publius' view on this subject raises the question of the purposes of enumeration other than limitation of the number of particular powers. Hamilton suggest that a main purpose is to limit or “abridge(d)” complete legislative “discretion” by constitutionalizing certain particular owers by enumeration in order to teach or oblige the future Congress to at least execute those powers which are essential to secure proper ends. The legislature retains “discretion” or is “at full liberty” in all that is not denied by negative, limited, enumeration. FP, H., 83:495–98, 26:171. Hamilton often speaks of enumerated powers, especially general powers, as duties. See note 42 above. Crosskey, correctly agrees and adds that enumeration is also required when power is divided to insure not merely presume certain crucial national congressional, as opposed to state or executive, powers. Crosskey presents a third reason for enumeration: “to express limitations upon” the manner in which a power should be employed (see Politics and the Constitution, chaps. 15, 16). In a soon to be published essay, “Madison's Refutation of Crosskey's Interpretation of the ‘General Welfare' Clause and the Enumeration,” I demonstrate that Madison — throughout his career —defended a fourth purpose of enumeration. That purpose was to render more specific the definition of the constitutional enumeration of thelimited number of limited ends of limited government, especially as generally indicatedby the “common defense and general welfare” clause. For instance, Madison himself, as Publius, engaged in a “review of the several powers” enumerated to Congress in order to reduce the generally expressed ends to six “different objects” derived from six “different classes” of specifically enumerated particular powers. FP, 41:256. Compare with his defense of “enumeration” as “definition” or “specification of the objects alluded to by … general terms” at the end of this very paper. FP, 41:262–63. On the question of the compatibility of government with a limited number of kinds of powers, expressed restrictions, and Publius doctrine of proportionate means, see pp. 564–68, 571–74.

46. See above, section one.

47. See above, ibid.

48. See Storing, , Anti–federalists, p. 90, note 20.Google Scholar

49. FP, H., 78:466, 85:513, M., 44:282, 39: 242.

50. FP, H., 84:512.

51. FP, M., 44:285, 282.

52. FPH., 26:171. On the difference, if any, between formulating a restriction in the form of “shall” or “ought” compare FP, H., 26:171, 55:526, 84:514–15. For Hamilton the only “useful” amendments should concern the “organization” of government not its “mass of power.” H., 85:525. Madison appears to have agreed but for a different reason. He had no intention to, and did not accept any amendment which would alter, “the principles and the substance of the powers given.” This would “injure the Constitution” and he did not intend to “endanger(ing) any part of the Constitution” The Debate and Proceedings of the Congress of the United States (Washington, 1834, I., 433).Google Scholar The quotes are taken from Storing's, Herbert J. excellent essay “The Constitution and the Bill of Rights” in McDowell, Taking the Constitution Seriously, pp. 269, 271.Google Scholar

53. FP, H., 84:514, 70:424, M., 41:263.

54. FP M., 40:252, 253, 38:240, 41:257, H., 25:167, 23:153, H., 83:509.

55. Compare FP, H., 84:514, 25:164–165; with Storing, , “Constitution and the Bill of Rights,” pp. 278, 272.Google Scholar

56. Compare, for instance, John Locke, Two Treatises of Government, in and around chapter 14 with passages cited in notes 9–15 and note 54. See my account this issue in “The Federalist Papers on the Constitutionality of Executive Prerogative,” Presidential Studies Quarterly 19 (1989): 267–83.Google Scholar

57. One may, of course, celebrate our Constitution if for no other reason than that it established a government in which public reflection, even upon the Constitution and the policies of its officials, is possible whether or not such reflection produces or concludes in unanimity on any given, even fundamental, question.