Federalist Paper 46 Summary: States, Militia, and Federal Power

Federalist Paper 46, published by James Madison on January 29, 1788, argues that state governments will always hold a practical advantage over the federal government because both answer to the same people, and the people naturally trust the government closer to their daily lives. Madison’s summary case: even if federal officials wanted to overreach, popular loyalty to the states, state officials’ capacity to resist, and an armed citizen militia vastly outnumbering any federal army would make such overreach structurally impossible.

The essay picks up directly from Federalist No. 45, with Madison opening by noting he was “resuming the subject of the last paper.”¹ Where No. 45 argued that the powers given to the federal government were “few and defined,” No. 46 asks a sharper question: even if the federal government tried to grab more power, could it actually pull it off? Madison’s answer is no, and the essay explains why.

Madison’s Core Move: The People Are the Boss

Madison reframed the whole debate at the start. He described the federal and state governments as “different agents and trustees of the people, constituted with different powers, and designed for different purposes,” and accused his critics of having “lost sight of the people altogether.”¹ Anti-Federalists were treating state and federal governments as rival powers fighting over a passive population. Madison said that missed the point.

In his framework, neither level of government has authority of its own. Both are hired agents. Real power sits with the people who created them, and the people can shift their support between these agents based on which one does a better job. That reframing has a practical payoff running through the rest of the essay: if the federal government overreaches, the people don’t just have the right to push back, they have every reason and every structural advantage to do so through the state governments they already trust.

Why Citizens Would Side With Their States

Madison predicted where that loyalty would land. He wrote that “the first and most natural attachment of the people will be to the governments of their respective States,” and he gave concrete reasons.¹ More people would rise through state politics. More government jobs and benefits would flow from the state level. State governments handled the domestic matters people cared about: property, family law, local commerce, public safety. And citizens would simply know their state officials better, connected through personal acquaintance, family ties, and local party networks.

A government that handles your property disputes, licenses your business, and educates your children earns an instinctive loyalty that a distant capital managing foreign policy and interstate commerce cannot match. Madison treated this asymmetry as a permanent structural advantage for the states. A federal government that tried to overstep would be pushing against the grain of popular sentiment; state governments resisting that overreach would be riding it.

Madison’s Ladder of State Resistance

Madison did not leave state resistance abstract. He described a specific escalation of tactics states could deploy against federal overreach. He wrote of “the disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices” as obstacles the federal government “would hardly be willing to encounter.”²

The steps climb in order. First, popular discontent. Then citizens refusing to help federal officers carry out unpopular programs. Then the state’s governor publicly opposing the policy. Then state legislatures passing laws that create administrative headaches for federal enforcement. Madison argued that even one state doing this could cause serious friction. Several neighboring states aligning their opposition would generate political pressure federal officials could not overcome.

The vision rested on a practical reality: the federal government in 1788 had almost no administrative capacity of its own. It depended on state cooperation to accomplish nearly everything. That dependency gave states enormous leverage. Not the legal authority to nullify federal law, but the practical ability to make enforcement so difficult that the federal government would back down or change course.

Where Resistance Ends: Federal Supremacy

The resistance framework has real limits. The Supremacy Clause (Article VI, Clause 2) establishes that federal law is “the supreme Law of the Land,” and judges in every state are bound by it regardless of contrary state laws.³ When Congress passes a law within its constitutional authority, states cannot simply override it. Under the doctrine of preemption, state laws that conflict with valid federal legislation are invalid. Madison was describing political resistance and administrative noncooperation, not a legal power to void federal statutes. States can make federal enforcement difficult by refusing to volunteer their own resources. They cannot pass laws that directly contradict valid federal legislation and expect those laws to stand.

The Militia as the Ultimate Safeguard

Madison’s most dramatic argument was raw military math. He calculated that no country could sustain a standing army larger than about one percent of its population, roughly one out of every twenty-five people capable of bearing arms. For the United States in 1788, that ceiling meant a federal army of “not more than twenty-five or thirty thousand men.”¹ Against that force, Madison placed a citizen militia “amounting to near half a million” armed individuals, led by officers appointed by the state governments and motivated by loyalty to their own communities.²

A roughly 16-to-1 advantage for the militia. Madison pressed the point further by looking at Europe. Monarchies across the Atlantic maintained standing armies as large as their treasuries could support, yet those governments “are afraid to trust the people with arms.”¹ If European citizens had the combination of personal arms and local self-government that Americans enjoyed, Madison argued, “the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.”

The Constitution itself built part of this arrangement into its structure. Article I, Section 8 gives Congress the power to organize, arm, and set training standards for the militia, but it reserves “the Appointment of the Officers, and the Authority of training the Militia” to the states.⁴ That split guaranteed militia commanders owed their positions to state governments, not to the federal administration. Madison described the resulting arrangement of armed citizens, trusted local governments, and state-appointed officers as forming “a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”⁵ The right to bear arms, in this context, is not just an individual liberty. It is a structural feature of the federal system, keeping the physical capacity for resistance distributed across the population.

How Federalist 46 Became Constitutional Law

Madison’s picture of states resisting through noncooperation eventually hardened into a legal rule courts call the anti-commandeering doctrine. The core principle: Congress can regulate individuals directly, but it cannot order state governments to do Congress’s work for them.

The earliest Supreme Court case pointing this way was Prigg v. Pennsylvania (1842), where the Court held that states could not be compelled to enforce the Fugitive Slave Act.⁶ The modern doctrine crystallized in New York v. United States (1992), which struck down a federal law forcing states to regulate radioactive waste. The Court held that “Congress may not commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”⁷

Printz v. United States (1997) extended the rule to state executive officers, striking down a provision of the Brady Handgun Violence Prevention Act that required local law enforcement to run background checks on gun buyers. Justice Scalia wrote that the “Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”⁸

The doctrine expanded again in NFIB v. Sebelius (2012), where the Court struck down the Affordable Care Act’s mechanism for forcing Medicaid expansion by threatening existing Medicaid funds, which Chief Justice Roberts called “a gun to the head.”⁹ And in Murphy v. NCAA (2018), the Court struck down a federal ban on states authorizing sports gambling, holding that “the distinction between compelling a State to enact legislation and prohibiting a State from enacting new laws is an empty one.”¹⁰

Across nearly two centuries, the throughline tracks closely to what Madison described in 1788. The federal government can act on individuals through its own officers, but it cannot conscript state governments as its enforcement arms.

What Has Changed Since 1788

Two structural shifts have altered the balance Madison described, even as his anti-commandeering principle survives.

The Seventeenth Amendment

Madison’s framework assumed state legislatures would have a direct pipeline into federal lawmaking through the Senate. Under the original Constitution, state legislatures chose U.S. Senators, giving states institutional representation in Congress. The Seventeenth Amendment, ratified in 1913, replaced that system with direct popular election.¹¹ The change severed the formal link between state governments and the federal legislative process, removing one channel through which states could check federal power from the inside.

The Militia Became the National Guard

Madison’s military calculation depended on state militias independent of federal command, led by state-appointed officers, composed of ordinary armed citizens. That arrangement changed with the Militia Act of 1903 (the Dick Act), the first federal law since 1792 to set standards for the militia. The Act required state militia units to organize and train to the same standards as the regular Army, funded by federal dollars, laying the foundation for the modern National Guard.¹² Later laws in 1908 and 1916 deepened federal authority over Guard units, creating the dual state-federal structure that exists today: Guard members serve under their governor during state emergencies but can be federalized under presidential command.

The modern Guard is more capable than anything the founders could have imagined, but it is no longer the purely state-directed force Madison described as the ultimate check on federal military power. The widespread private ownership of firearms Madison cited persists, but the organized militia framework he relied on has been absorbed into a system where federal authority plays a dominant role in training, funding, and equipment.

What survives from Federalist No. 46 is not the specific institutional arrangement Madison described but the principle behind it. A federal system works because power is distributed across multiple centers of authority, each drawing legitimacy from the same source. States cannot nullify federal statutes, but Congress cannot turn state governments into branch offices either. The tension Madison identified, cooperative when interests align and resistant when they diverge, is still the defining feature of American federalism.

1
The Avalon Project. Federalist No 46 – The Influence of the State and Federal Governments Compared
2
The Founders’ Constitution. James Madison, Federalist, No. 46
3
Congress.gov. Overview of Supremacy Clause
4
Congress.gov. Article I, Section 8, Clause 16
5
Legal Information Institute. Historical Background on Second Amendment
6
Justia. Prigg v. Pennsylvania, 41 U.S. 539 (1842)
7
Congress.gov. Amdt10.4.2 Anti-Commandeering Doctrine
8
Legal Information Institute. Printz v. United States, 521 U.S. 898 (1997)
9
Justia. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)
10
Supreme Court of the United States. Murphy v. National Collegiate Athletic Assn. (2018)
11
Congress.gov. U.S. Constitution – Seventeenth Amendment
12
National Guard. Top 10 Most Important National Guard Events