The Constitutional and Natural Limits of National and State Powers

Differences between Hamilton and Madison in the Federalist are evident in their discussion of the allocation of federal powers and the natural constraints limiting the centralization of power. Hamilton thought national powers would grow and increase over time. Madison believed the Constitution allocated limited powers to the national government, the remainder of which would be retained by the states with contingencies, such as a temporary disruption of this allocation during time of war. These differences resulted in no small part from their disagreements over the natural limits to the centralization of power.

Hamilton is a strong nationalist and pragmatic federalist. In no. 9, Hamilton declares that a federal form of government would exist even if the state governments are subordinate to the national government, because state governments are constitutionally guaranteed and represented in the Senate (9:44). He concedes that the state will retain “certain exclusive and very important portions of sovereign power” (9:44), including “all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States” (32:166; emphasis in the original). The powers reserved to the states, however, are those “troublesome” and “nugatory” powers, the possession of which “contribute nothing to the dignity, to the importance, or to the splendor of the national government” (17:87).

States' sovereignty and rights, according to Hamilton, do not arise from a compact between the states to form the union as Calhoun and others claim.Footnote ¹⁴ Instead, states' sovereignty arises from the people's social contract that established their state governments, but which the people of each state modified when they ratified the Constitution (no. 22:120).Footnote ¹⁵ The Constitution thus takes precedence over the states. States' rights, consequently, are limited and subject to constitutionally legitimate national intervention.

Hamilton suggests state governments are free to exercise their powers in all areas except those which are the exclusive authority of the national government or prohibited to the states (no. 32). He thus implies that the states will have plenty of opportunities to direct policy (but he mentions only one area of “independent and uncontrollable [state] authority”—the power “to raise their own revenues for the supply of their own wants” (32:166). He also introduces the concept of “concurrent jurisdiction,” which can be read to authorize “occasional interferences in the policy of any branch of administration” (32:166). In other words, Hamilton sees the Constitution protecting specific national responsibilities from state competition but opening up the jurisdictions of most state governments to competition from the national government. In this competitive environment, Hamilton believes the national government will prevail, and the roles and responsibilities of state governments will decline over time. “[I]n a short course of time,” he wrote, “the wants of the States will naturally reduce themselves within a very narrow compass” (no. 34:174). The Constitution, in Hamilton's eyes, allows flexibility in the federal division of national and state government responsibilities; this invites competition between the national and state governments for public loyalty.Footnote ¹⁶

Hamilton recognizes three natural limits to the centralization of power in the national government. The first is the desire of national officials for fame and importance. Since there is little fame or importance in the petty administration of local affairs, these “nugatory” activities will be left to the state governments (17:87; see also 32:165). The two remaining variables are the sense of the people and the “extreme hazard of provoking the resentments of the State governments” (32:165), both of which may be overcome if public loyalty can be turned to favor the national government.

Despite Hamilton's “general lack of concern with federalism,”Footnote ¹⁷ Hamilton's interpretation of the Constitution was not so loose that it placed no limits on the national government. For the “necessary and proper” clause to justify a national bank, it need not be so elastic that it justifies anything.Footnote ¹⁸ Indeed, Hamilton recognized the Constitution prohibited the national government from funding internal improvements such as canals, although he favored a constitutional amendment that allowed such actions.Footnote ¹⁹ “Hamilton,” according to Banning, “was hardly a consolidationist by European or by modern standards.”Footnote ²⁰

Much contemporary thought claims Madison is also a strong nationalist.Footnote ²¹ For example, Diamond correctly emphasizes Madison's nationalistic orientation at the Constitutional Convention, but he overstates Madison's arguments for centralized government. “Madison,” Diamond writes, “considered the ends of the union to be many.”Footnote ²² True, but “many” is not “unlimited.” The crux of Diamond's argument is this sentence: “This was the great and novel idea which came from the Convention: a large, powerful republic with a competent national government regulated under a wise Constitution.”Footnote ²³ The statement is true enough, but missing from this description is a key adjective, “limited,” as in, “a competent and limited national government.” James Madison's nuanced thinking allowed him to place the two adjectives, competent and limited, side-by-side without contradiction. Banning argues against the scholarship that Madison's nationalism favored consolidation.Footnote ²⁴ He also identifies in Madison's thought a vital role for state governments to check the “ambitions of the national rulers” and to overcome some of the problems of distant democracy.Footnote ²⁵ Madison's nuances on nationalism and federalism are present in the Federalist.

Madison thinks a strong national government is essential, but conditional. Like Hamilton, Madison affirmed in the Federalist that the national government needs sufficient powers to fulfill its objectives (nos. 20, 37); however, Madison corrects Hamilton's pragmatic federalism and limits the national government's authority to those powers allocated it by the Constitution. Following Hamilton's pronouncement in no. 9 that a federal government only requires that the state governments exist rather than retain independent powers, Madison, in no. 14, declares that the national government's jurisdiction is limited to “certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any” (14:70).Footnote ²⁶ After Hamilton limits the sovereign rights of the states to the independent power to tax in no. 32, Madison, in no. 39, confirms the “distinct and independent” supremacy of state and national governments to their respective spheres. He denies that the powers given to the national government by the Constitution create a national government, and he notes, in no. 45, that the national government's powers would be “most extensive and important” in times of “war and danger.” In times of “peace and security,” however, the state governments would be most important.Footnote ²⁷ Madison emphasizes the distinctions and divisions between the national and state governments that create a strong, but limited and conditional, national government.

Madison's support for a more specific and limited allocation of powers to the national government is due, in no small part, to what he considered the natural limits of centralized power. Madison noted a few times that the state governments fulfill a necessary role that could not be achieved by the national government alone (14:70; 46:262–63). In no. 46, Madison notes that even if the people should prefer the national to the state governments, the states need not be overly fearful, “because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered” (46:263; emphasis added). The natural, physical limitations of administration prevent the national government from administering everything well—even if it attracts the best individuals.Footnote ²⁸

Madison developed this theme two years later in an anonymous essay that explained two deleterious consequences that would result from consolidating power in the national government. First, it would create a workload that would overwhelm Congress and force it to shift responsibilities to the executive. Second, it would undermine the people's ability to control Congress.Footnote ²⁹ In contrast, a national government of limited responsibilities favors Congress, the deliberative branch, and helps overcome the problems associated with distant democracyFootnote ³⁰ by helping with the “collection and articulation of the public voice.”Footnote ³¹ Madison's nationalism, thus, is conditioned upon those objects that concern the entire nation and that the national government can administer well without being overburdened.

Hamilton and Madison differ in the Federalist on the natural constraints limiting the centralization of power. These differences play a part in Hamilton's willingness to read the national government's powers broadly and belief that the national government's powers would increase over time. Madison insists the national government's powers are limited, and while they may grow, especially during contingencies such as war, he expects they will return to normal when the danger has passed.

Public Opinion and the Allocation of Powers

Hamilton and Madison both realized public opinion could shift the allocation of powers between the national and state governments. They disagreed over what variables would cause public loyalty to shift and how difficult the shift would be. Hamilton thought public loyalty could be turned fairly easily to favor the national government over the states. Madison was more skeptical, acknowledging inherent human proclivities and institutional limitations that make shifting public loyalty to the national government difficult.

Hamilton identifies and explains three variables in no. 17 that he thinks will shift public loyalty from one tier of government to another. Those variables are

1. 1) proximity;

2. 2) effective administration; and

3. 3) provision of criminal and civil justice, in other words, protection of the people's safety and security.

Hamilton says very little about effective administration in no. 17, but it is a prime factor in other essays and vital to Hamilton's argument in this essay.

Hamilton's first variable is proximity. Hamilton proposed a direct correlation between the distance and diffusion of an object and human affection.Footnote ³² Because state governments are closer and deal with more concrete issues than the national government, Hamilton claimed proximity favors the states in an intergovernmental dispute.

Hamilton's second variable, effective administration, appears in an off-handed remark. The states will generally have the advantage over the national government in gaining the people's support, Hamilton wrote, only if “they administer their affairs with uprightness and prudence” (17:87). This small caveat has enormous consequences. A few paragraphs later, Hamilton reveals that the influence of proximity on public loyalty can be “destroyed” by effective administration on the national level. Hamilton conceals his belief in this essay that the national government will be more effectively administered than the states and, hence, win the battle for public loyalty.

In other essays, Publius devotes considerable attention to explaining how the national government will be more effectively administered than state government. As a simple example, nos. 3 and 10 both explain why the best people will be attracted to the national government. Later, in no. 27, Hamilton declares that the national government will be better administered and public loyalty will turn away from the states and to the national government. “I believe it may be laid down as a general rule,” he writes, “that [the people's] confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration” (27:142). He continues a few sentences later: “Various reasons have been suggested in the course of these papers to induce a probability that the general government will be better administered than the particular governments” (27:142). He then repeats four reasons, previously developed in the Federalist, for believing that the national government will be better administered than the state governments,Footnote ³³ and notes that more reasons will be given later as the structure and workings of the national government are explained (27:142). Thus, in no. 17 Hamilton belies his true belief that public loyalty will shift to favor the national government, despite the states' proximity to the people.Footnote ³⁴

In addition to proximity and good administration, Hamilton argues that the government that provides for the “administration of criminal and civil justice,”—in other words, for the safety and security of the people—may shift public loyalty from one tier of government to another. “This [variable],” he claims, “is the most powerful, most universal, and most attractive source of popular obedience and attachment” (17:88). Since state governments are generally responsible for safety and security, states have an advantage over the national government in gaining and retaining popular loyalty.

Yet, Hamilton proposed a means to counter this advantage and turn it to the national government's favor. In no. 27, Hamilton argues that the national government needs to be actively engaged in the “internal concerns” of the citizens in order to gain their support.

A decade after the Constitution's ratification, Hamilton found the means to do this with a proposal to expand the national judiciary to include multiple districts in the states and national “Justices of the Peace” to enforce federal law. In addition to providing new avenues of patronage, a national marshals service would create a highly visible embodiment of the national government working to protect the people's safety and security.Footnote ³⁵ In this manner, Hamilton could turn the third variable away from the states and shift public attachment to the national government. This would give the national government an advantage in two of the three variables that determine which tier of government the public prefers, although the impression of no. 17 is that the states will have the advantage.Footnote ³⁶

Madison disagrees. He thinks the state governments will prevail in intergovernmental competitions for public loyalty. In no. 45, Madison claims the greater opportunity of the states for patronage, attention to the domestic and personal interests of the people (45:259), and the public's personal ties with state officials (45:258) will keep the public loyal to their states. Madison then cites multiple historical examples to prove that other federal-based governments all failed because the periphery overpowered the center (45:257–58; also nos. 18–20). These points buttress his fear that the greater danger to the union is not the center overpowering the states but the states overpowering the center.

Madison addresses two of Hamilton's three variables in no. 46. Regarding Hamilton's first variable that the people will support the more proximate government, Madison strengthens the connection by calling the people's attachment to their state government their “first and most natural attachment” (46:262). Madison is skeptical about Hamilton's second claim that efficient administration is sufficient to shift public loyalty from state governments to the national government. Madison begins by first distancing himself from Hamilton's claim with these words: “If, therefore, as has been elsewhere remarked …” (46:263). The conditional “if” questions Hamilton's argument that would have been accepted as established were Publius in complete unison. Madison acknowledges that public loyalty may shift to the national government if there are “irresistible and manifest proofs” that the national government is better administered (46:263). This very high burden of proof, Madison apparently believes, will likely be rarely achieved. In that same paragraph, Madison notes the natural limits of centralized administration discussed above.Footnote ³⁷

Madison sees yet another obstacle impairing the national government's efforts to win public loyalty in the Constitution's “local spirit” or “popular bias” (hereafter referred to as the “localism bias”). This localism bias predisposes all federal officials to favor state interests, because all federal elections depend to some extent on state government: The executive depends on the electoral college, which is established by state legislatures; senators are elected by state legislatures; and representatives will most likely depend on the endorsements of leading state officials to be elected. Consequently, Madison concludes, “each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must feel a dependence, which is much more likely to beget a disposition too obsequious than overbearing towards them” (45:259). Also, Madison notes that federal officials drawn from the states will be predisposed to favor those localities and their interests (46:265).Footnote ³⁸ Madison's belief in the inherent difficulty of shifting that public loyalty away from the states and to the national government is a fundamental difference with Hamilton.

Hamilton and Madison's disagreements over the specific powers allocated to the national government are intractable given their fundamental disagreements over the natural limits to centralization and what affects public loyalty to government. Hamilton thinks an efficiently administered national government pursuing policies favored by the public will shift public loyalty to the national government. Madison, on the other hand, sees limitations to effective administration by even the most capable. He is thus skeptical that national officials can overcome the public's natural attachment to their state government or the Constitution's localism bias. Whether Hamilton and Madison are fully conscious of these disagreements during their collaboration as Publius is not the issue. The issue is whether these differences are present in the Federalist, how those differences affect Hamilton's and Madison's ideas about cultivating public sentiment for the constitutional order, and how those differences influence Hamilton's and Madison's positions on the judicial and political safeguards of federalism.

The Political Safeguards of Federalism

According to the political safeguards of federalism theory, the founders structured the political system to give the states (both as political and geographic units) influence in the national policymaking process so as to prevent the national government from dominating or destroying the states. One political safeguard gives state governments a voice in national policymaking through political structures and institutions; another safeguard allows the public to support one tier of government giving it the advantage in an intergovernmental dispute.

Hamilton's preferred means to resolve intergovernmental disputes rest with the public. In nos. 17, 26, 28, and 33, Hamilton writes that the public will play a vital role in limiting the national and state governments to their proper powers and correct any unjust efforts to usurp power. The most important essay in this regard is no. 17, which is misleadingly presented and widely understood as an examination of the political safeguards that will check and contain the national government.Footnote ³⁹ A close reading of no. 17 reveals Hamilton thinks the public will prefer the national over the state governments and will thus generally resolve intergovernmental disputes in the national government's favor. “For Hamilton,” Banning notes, “the Constitution was an instrument permitting vigorous administration, and a sound administration was to be the agency for winning citizens away from their attachment to the states and for consolidating power by degrees until the Constitution actually became as national as required.”Footnote ⁴⁰

Hamilton never fully explains when, where, or how the people will exert their influence. However, he comes close to an explanation twice. In no. 26, Hamilton writes the state legislatures may be the “VOICE” and, “if necessary, the ARM” of the people's discontent (140; emphasis in the original). In no. 28, he writes that the national and state governments will stand ready to check any usurpation by the other, but it is “[t]he people, by throwing themselves into either scale,” who determine which government shall prevail (149). Neither passage explains how the public will express their support for one governmental tier and opposition to the other. If the mechanism is elections, their biannual and blunt character would make it difficult to stop immediately an unconstitutional power grab or even to identify the public's specific concern. Important to note is that Hamilton, in contrast to Madison, does not see state government acting independently of the public, rather state actions against the national government are reactions to the public's discontent.

Why does Hamilton give the public such a powerful role in resolving intergovernmental disputes? Hamilton is often viewed as antidemocratic, seeking to “thwart democracy and protect vested interests.”Footnote ⁴¹ If this view is correct, Hamilton probably thought that elites could manipulate public opinion to support the national government. Karl-Friedrich Walling, however, posits Hamilton is a liberal-republican who sought to realize the ideals of the American founding and American empire in a dangerous world.Footnote ⁴² Hamilton's willingness to allow popular participation in deciding intergovernmental disputes over the boundaries of federalism is a prime example of Hamilton's republicanism.Footnote ⁴³ In the Federalist, Hamilton is confident that once the public sees the policies and advantages of a strong national government, they will endorse and support it.Footnote ⁴⁴

Madison prefers containing policymaking and constitutional disputes to governing institutions rather than incorporating direct public participation.Footnote ⁴⁵ Sounding an alarm similar to Rousseau's distinction between public opinion and the public will, Madison noted in 1791 that the extended republic makes it more difficult to “ascertain” the public's “real opinion” and easier to “counterfeit” a public opinion.Footnote ⁴⁶ Madison places not only the governing powers but also the checks against majority tyranny and the abuse of power within institutions (nos. 10, 51). Madison's system facilitates the election of rulers with “the most wisdom to discern, and most virtue to pursue, the common good of society” (57:318), who will “refine and enlarge” public opinion (10:50), and pursue their institutional ambition to counter other institutional ambitions (51).Footnote ⁴⁷ Public opinion's role is to shape public policy indirectly through elected representatives working within the institutions of government.

Madison is particularly skeptical of public opinion on such vital matters as interpreting and altering the Constitution. In no. 49, Madison explains that appealing to the people to preserve the separation and independence of the three branches of government would not only fail but would destroy public veneration for the Constitution, disturb public tranquility, and ultimately disrupt the constitutional equilibrium (49:282–83). In no. 50, Madison notes that the public is unlikely to identify correctly the source of constitutional abuses or remedy the problem. The means to protect the Constitution and cultivate public sentiment and reverence for the Constitution, according to Madison, are to limit significantly the public's ability to participate in constitutional disputes. The same logic applies to constitutional disputes between the national and state governments, with Madison advocating appeal to public opinion only as a last resort (44:254).Footnote ⁴⁸

Madison thinks the political safeguards favor the states. First, as explained above, Madison disagrees with Hamilton that efficient administration is sufficient to shift public loyalty to the national government, because of the natural limits to centralized administration and the Constitution's localism bias. Madison also identifies these six other political safeguards: the executive and judiciary “expounding and giving effect to the legislative acts” (44:254); public elections of faithful representatives; the ability of individual state governments to frustrate the execution of federal laws; the public's bias towards state governments; the ability of state government officials to influence the elections of federal officials; and the collective efforts of state governments to resist the national government (no. 45). Only the first two of these can be used by the national government to prevent state governments from usurping national powers. All six can be used by the states to oppose and resist the national government. Madison concludes from this analysis that intergovernmental disputes resolved through political processes will generally favor state governments over the national government (45:257).

Only one of the six political safeguards identified by Madison, electing more faithful representatives, involves the public. After describing the executive and judiciary as “the first instance” to prevent unconstitutional power grabs, he calls appealing to the people through elections “the last resort.” “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” (44:254 emphasis added). Even in this instance the public's role is limited to a regularly scheduled public election, not as direct participants whose voices influence the debate or institutional votes.Footnote ⁴⁹ Madison limits the public's participation in checking abuses of power to the medium of elections that occur following the usurpation of power.Footnote ⁵⁰

In contrast to the “last resort,” Madison's “first instance” for correcting an unconstitutional usurpation of power is through governmental institutions. “In the first instance,” he wrote, “the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts” (44:254). The interpretation of this quote turns upon whether the executive and judiciary act separately or in unison. The discussion regarding how they might act in unison is provided below in the section on the judicial safeguards. If Madison means the executive and judiciary are to act separately, then the executive could veto the bill or exercise the constitutional power to “take care” to execute the laws to delay or alter the implementation of an unconstitutional act of the legislature. If the act was passed by the state, the responsibility would fall to that state's governor. If the act was passed by Congress, the responsibility would fall to the president. Given Madison's hope for national officials and pessimistic view of state officials, he would likely place more trust in the president to limit acts of Congress than the governors to restrict their legislatures.

The state governments' most important political safeguard, according to Madison, is their ability to work collectively against the national government (nos. 46, 51).Footnote ⁵¹ Unlike Hamilton's understanding of this safeguard, which begins with public opinion mobilizing the collective action of state governments (see nos. 26 and 28), Madison sees state governments collaborating against federal abuses of power with public support but not public demands to participate in the process (46:266).

Hamilton sees political safeguards as a means to shift public loyalty to the national government and legitimize expansion of the national government's powers. Madison thinks political safeguards favor the state governments, because the public's “first and natural attachment” is to their state government, the Constitution has an intrinsic localism bias, and in previous confederal states the periphery always overwhelmed the center. Madison supports the use of political safeguards, although he thinks they are insufficient to protect against unconstitutional power grabs by the national or state governments. Madison opposes drawing the public into constitutional debates until other institutional means of resolving the problem have failed.

The Judicial Safeguards of Federalism

Preserving the integrity of a written constitution requires maintaining constitutional limits and limiting popular appeals. The judiciary, Hamilton and Madison both acknowledged in the Federalist, could help protect the Constitution and safeguard federalism. At the time of the founding, the judicial safeguards of federalism included judicial review and advisory opinions.

Under judicial review, the judiciary, while reviewing a case, can declare a law unconstitutional. The founders' support for judicial review has been questioned because there is no clear indication in the Constitution or the Constitutional Convention's record that the founders approved of judicial review, and because the Supreme Court appeared hesitant to accept and use this power. Hamilton and Madison make four distinct references in the Federalists Papers to the Supreme Court exercising judicial review (nos. 16, 39, 78, and 81), and a few oblique references to it as well; each reference applies to resolving intergovernmental disputes and defining the boundaries of federalism.Footnote ⁵² Furthermore, it is important to recognize that while Publius answers many charges by Brutus and other antifederalists, neither Hamilton nor Madison denies Brutus's charge that the Constitution gave the Supreme Court power to review laws; indeed, no. 78 acknowledges and justifies the power. Also, Keith Whittington finds new evidence suggesting that judicial review was more common and less controversial in the Supreme Court's early years than previously thought.Footnote ⁵³

Under advisory opinions, the judiciary, upon the request of the executive or legislature, issues a nonbinding opinion on a bill, issue, or law before the law is challenged in a legal suit. Advisory opinions were part of accepted practice in the British tradition, common in the colonies, and nothing in the Constitutional Convention's records indicated the founders opposed them.Footnote ⁵⁴ In fact, on August 20, near the end of the Constitutional Convention, the Convention agreed “without debate or consideration” to a proposal that “[e]ach branch of the Legislature, as well as the supreme executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions.”Footnote ⁵⁵ The Committee of Style did not include this proposal in the Constitution. The vote for the proposal and its absence from the final document cannot be interpreted as either support for or opposition to the proposal.Footnote ⁵⁶ The Supreme Court issued some advisory opinions before renouncing the practice in 1793 for political reasons.Footnote ⁵⁷ Advisory opinions are not inconsistent with Hamilton's or Madison's ideas developed in the Federalist regarding the judiciary's role in the constitutional system, despite what some have claimed.Footnote ⁵⁸ Any consideration of Hamilton's and Madison's writings on the judiciary needs to consider these two judicial safeguards of federalism.

Hamilton explains the constitutional case for judicial review in nos. 16 and 78. In no. 16, Hamilton recognized the judiciary's responsibility to help resolve intergovernmental disputes by declaring resolutions of the legislature “contrary to the supreme law of the land, unconstitutional, and void” (16:85).Footnote ⁵⁹ In no. 78, Hamilton declares the Constitution creates a national government of limited powers. These limits can be preserved in “no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void” (434). Hamilton acknowledges that the judiciary helps limit the national and state governments' powers and resolve intergovernmental disputes.

Hamilton bases his defense of judicial review on the logic that no positive constitutional grant of judicial review is required by the Constitution. “There is no position which depends on clearer principles,” Hamilton wrote in no. 78, “than that every act of a delegated authority, contrary to its tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid” (435). In other words, if the Congress passes a law that exceeds its powers, the court has no authority to decide a case that rests on that unconstitutional law.

Madison's position on judicial review is disputed. Some claim he opposes judicial review.Footnote ⁶⁰ Others counter that Madison accepts judicial review.Footnote ⁶¹ In a letter to Monroe in 1817, Madison wrote that if the Constitutional Convention had accepted his proposal for a Council of Revision, which would have joined the executive and Supreme Court in vetoing unconstitutional bills, then judicial review would be unnecessary.Footnote ⁶² It is interesting to note that during the Convention's debates on the Council of Revision, Madison never disagreed with delegates who claimed the judiciary would have the power to rule on the constitutionality of laws through judicial review.Footnote ⁶³ His silence on this point may have been from a desire not to confuse the issue at hand. However, once the Council of Revision was rejected, Madison had to come to terms with what this meant and the alternative means by which his objective might be achieved. His writings in the Federalist likely reflect the Convention's understanding of the Constitution and the evolution of his ideas within that context.

In the Federalist, Madison is clear that the judiciary has a role to play in limiting the tiers of government to their respective spheres of authority. In no. 39, Madison notes that the states retain a “residuary and inviolable sovereignty over all other objects” not given to the national government. He then continues,

The tribunal established under the “general government” that is supposed to decide “impartially” can be none other than the federal judiciary. That this tribunal is the federal judiciary is confirmed by Madison's claim that this tribunal will prevent an “appeal to the sword and dissolution of the compact.” This reference is to the argument first developed in no. 15 and repeated in nos. 20 and 37 that without a judiciary to enforce governmental edicts on individual citizens, the government must appeal to the sword causing civil war and dissolving the compact. Thus, Madison's tribunal that will prevent an appeal to the sword is the federal judiciary. According to this quote, the federal judiciary is to participate in deciding the proper sphere and authority of the national and state governments by referring to the rules of the Constitution—rules that may or may not favor the national government's assumption of powers.

Madison makes another reference to the judiciary safeguarding the limits of federalism in no. 44. There he asks what shall constrain Congress and the states to their respective spheres. To quote the passage at length:

This quote inescapably attributes to the judiciary a primary responsibility to stop the national and state governments from usurping power. Thus, in two separate instances, both of which speak directly to how the national and state governments will be constrained to their constitutional spheres of authority, Madison expects the judiciary to serve as a primary means of resolving federalism boundary disputes.

What is less clear is whether Madison expected the executive and judiciary to work separately or conjointly. The executive's ability to work independently and serve as a political safeguard of federalism was considered under the political safeguards. The judiciary, acting independently, would use judicial review. However, Madison may be suggesting here that the executive and judiciary could work together to oppose the congressional usurpation of power if the executive requests an advisory opinion from the judiciary. If so, this idea resembles Madison's failed proposal for a Council of Revision which would have joined the executive and judiciary in a council with the power to veto bills approved by Congress.

Madison probably realized that as part of the national government the judiciary would have a tendency to favor the national perspective. This could serve as an important counterweight against the political bias of safeguards favoring state governments. The judicial bias would be constrained, however, by judicial procedures that promote “impartiality,” by limits on judicial power (such as those identified by Hamilton in no. 78), and by the political safeguards. Madison envisioned the judiciary as an integral part of the Constitution's checks and balances, particularly in resolving intergovernmental disputes and defining the boundaries of federalism.

Throughout his life, Madison's position on how intergovernmental disputes should be resolved was consistent with the positions he outlined in the Federalist, a position that included a role for the Supreme Court in arbitrating those disputes. For example, in an 1823 letter to Jefferson, Madison mentioned again the difficulties of referring to the public to resolve intergovernmental disputes, the consequence of civil war if the resolution depended on a force of strength between the national and state governments, and the constitutional case to allow the judiciary to resolve the issue. Madison concludes this argument with the sentence: “I have never yielded my original opinion indicted in the ‘Federalist’ No. 39 to the ingenious reasonings of Co: Taylor agst. this construction of the Constitution.”Footnote ⁶⁵ Madison is likely referring to John Taylor of Caroline who advocated the compact theory of the Constitution and was very critical of Madison's claim that the judiciary would determine boundaries between the national and state governments.Footnote ⁶⁶

Madison repeated this argument seven years later in a letter to Edward Everett regarding state nullification of national laws. Madison acknowledges that some political safeguards may be used to resolve intergovernmental disputes, but he notes the problems of relying strictly on the political safeguards to resolve such disputes and he mentions the judiciary's role in resolving these disputes. He emphatically denies that nullification is constitutional or that the Virginia Resolve indicates any such thing. Again, Madison refers to the Federalist and its treatment of the Supreme Court's authority and role to resolve intergovernmental disputes over the proper jurisdiction of the national and state governments.Footnote ⁶⁷

In his 1823 and 1830 letters, Madison acknowledges dissatisfaction with how certain judges fulfilled their responsibilities, but he maintains faith in the institutions and processes established by the Constitution and explained by Publius. If, as a practitioner, he relied more on political than judicial safeguards, it should be noted that his appeals to the judiciary would have been answered by Federalist judges. The political safeguards he advocated would not upset the constitutional order or equilibrium (more on this below).

Both Madison and Hamilton recognize a role for the political and judicial safeguards of federalism, including judicial review. Hamilton emphasizes resolving intergovernmental disputes through political safeguards, which include the public. Madison distrusts public opinion to resolve constitutional questions. He emphasizes the institutional safeguards to preserve the constitutional order.