1787 Federalist 33 · Founding Made Plain

11787 Federalist No. 33

2The Same Subject Continued

3Concerning the General Power of Taxation

4From the Daily Advertiser.

5January 3, 1788.

6HAMILTON

7To the People of the State of New York:

8THE residue of the argument

9 against the provisions of the Constitution

10 in respect to taxation

11 is ingrafted upon the following clause.

12The last clause of the eighth section

13 of the first article of the plan under consideration

14 authorizes the national legislature

15 "to make all laws which shall be

16 NECESSARY and PROPER

17 for carrying into execution THE POWERS

18 by that Constitution vested

19 in the government of the United States,

20 or in any department or officer thereof";

21 and the second clause of the sixth article declares,

22 "that the Constitution and the laws

23 of the United States made IN PURSUANCE THEREOF,

24 and the treaties made by their authority

25 shall be the SUPREME LAW of the land,

26 any thing in the constitution or laws

27 of any State to the contrary notwithstanding."

28These two clauses have been the source

29 of much virulent invective and petulant declamation

30 against the proposed Constitution.

31They have been held up to the people

32 in all the exaggerated colors of misrepresentation

33 as the pernicious engines

34 by which their local governments

35 were to be destroyed

36 and their liberties exterminated;

37 as the hideous monster

38 whose devouring jaws would spare

39 neither sex nor age, nor high nor low,

40 nor sacred nor profane;

41 and yet, strange as it may appear,

42 after all this clamor,

43 to those who may not have happened

44 to contemplate them in the same light,

45 it may be affirmed with perfect confidence

46 that the constitutional operation

47 of the intended government

48 would be precisely the same,

49 if these clauses were entirely obliterated,

50 as if they were repeated in every article.

51They are only declaratory of a truth

52 which would have resulted

53 by necessary and unavoidable implication

54 from the very act of constituting

55 a federal government,

56 and vesting it with certain specified powers.

57This is so clear a proposition,

58 that moderation itself can scarcely listen

59 to the railings

60 which have been so copiously vented

61 against this part of the plan,

62 without emotions that disturb its equanimity.

63What is a power,

64 but the ability or faculty of doing a thing?

65What is the ability to do a thing,

66 but the power of employing the MEANS

67 necessary to its execution?

68What is a LEGISLATIVE power,

69 but a power of making LAWS?

70What are the MEANS to execute a LEGISLATIVE power

71 but LAWS?

72What is the power of laying and collecting taxes,

73 but a LEGISLATIVE POWER,

74 or a power of MAKING LAWS,

75 to lay and collect taxes?

76What are the propermeans of executing such a power,

77 but NECESSARY and PROPER laws?

78This simple train of inquiry furnishes us at once

79 with a test by which to judge

80 of the true nature of the clause complained of.

81It conducts us to this palpable truth,

82 that a power to lay and collect taxes

83 must be a power to pass all laws

84 NECESSARY and PROPER

85 for the execution of that power;

86 and what does the unfortunate and culumniated provision

87 in question do more than declare the same truth,

88 to wit,

89 that the national legislature,

90 to whom the power of laying and collecting taxes

91 had been previously given,

92 might, in the execution of that power,

93 pass all laws NECESSARY and PROPER

94 to carry it into effect?

95I have applied these observations thus particularly

96 to the power of taxation,

97 because it is the immediate subject

98 under consideration,

99 and because it is the most important

100 of the authorities proposed

101 to be conferred upon the Union.

102But the same process will lead to the same result,

103 in relation to all other powers

104 declared in the Constitution.

105And it is EXPRESSLY to execute these powers

106 that the sweeping clause,

107 as it has been affectedly called,

108 authorizes the national legislature

109 to pass all NECESSARY and PROPER laws.

110If there is any thing exceptionable,

111 it must be sought for in the specific powers

112 upon which this general declaration is predicated.

113The declaration itself,

114 though it may be chargeable

115 with tautology or redundancy,

116 is at least perfectly harmless.

117But SUSPICION may ask, Why then was it introduced?

118The answer is,

119 that it could only have been done for greater caution,

120 and to guard against all cavilling refinements

121 in those who might hereafter feel a disposition

122 to curtail and evade

123 the legitimatb authorities of the Union.

124The Convention probably foresaw,

125 what it has been a principal aim

126 of these papers to inculcate,

127 that the danger which most threatens

128 our political welfare

129 is that the State governments

130 will finally sap the foundations of the Union;

131 and might therefore think it necessary,

132 in so cardinal a point,

133 to leave nothing to construction.

134Whatever may have been the inducement to it,

135 the wisdom of the precaution is evident

136 from the cry which has been raised against it;

137 as that very cry betrays a disposition

138 to question the great and essential truth

139 which it is manifestly the object

140 of that provision to declare.

141But it may be again asked,

142 Who is to judge of the NECESSITY and PROPRIETY

143 of the laws to be passed

144 for executing the powers of the Union?

145I answer, first,

146 that this question arises as well and as fully

147 upon the simple grant of those powers

148 as upon the declaratory clause;

149 and I answer, in the second place,

150 that the national government, like every other,

151 must judge, in the first instance,

152 of the proper exercise of its powers,

153 and its constituents in the last.

154If the federal government should overpass

155 the just bounds of its authority

156 and make a tyrannical use of its powers,

157 the people, whose creature it is,

158 must appeal to the standard they have formed,

159 and take such measures

160 to redress the injury done to the Constitution

161 as the exigency may suggest

162 and prudence justify.

163The propriety of a law, in a constitutional light,

164 must always be determined by the nature

165 of the powers upon which it is founded.

166Suppose, by some forced constructions

167 of its authority

168 (which, indeed, cannot easily be imagined),

169 the Federal legislature should attempt

170 to vary the law of descent in any State,

171 would it not be evident

172 that, in making such an attempt,

173 it had exceeded its jurisdiction,

174 and infringed upon that of the State?

175Suppose, again,

176 that upon the pretense of an interference

177 with its revenues,

178 it should undertake to abrogate a landtax

179 imposed by the authority of a State;

180 would it not be equally evident

181 that this was an invasion

182 of that concurrent jurisdiction

183 in respect to this species of tax,

184 which its Constitution plainly supposes

185 to exist in the State governments?

186If there ever should be a doubt on this head,

187 the credit of it will be entirely due

188 to those reasoners who,

189 in the imprudent zeal of their animosity

190 to the plan of the convention,

191 have labored to envelop it in a cloud

192 calculated to obscure

193 the plainest and simplest truths.

194But it is said

195 that the laws of the Union

196 are to be the SUPREME LAW of the land.

197But what inference can be drawn from this,

198 or what would they amount to,

199 if they were not to be supreme?

200It is evident they would amount to nothing.

201A LAW, by the very meaning of the term,

202 includes supremacy.

203It is a rule which those to whom it is prescribed

204 are bound to observe.

205This results from every political association.

206If individuals enter into a state of society,

207 the laws of that society must be

208 the supreme regulator of their conduct.

209If a number of political societies

210 enter into a larger political society,

211 the laws which the latter may enact,

212 pursuant to the powers intrusted to it

213 by its constitution,

214 must necessarily be supreme over those societies,

215 and the individuals of whom they are composed.

216It would otherwise be a mere treaty,

217 dependent on the good faith of the parties,

218 and not a goverment,

219 which is only another word

220 for POLITICAL POWER AND SUPREMACY.

221But it will not follow from this doctrine

222 that acts of the large society

223 which are NOT PURSUANT

224 to its constitutional powers,

225 but which are invasions

226 of the residuary authorities

227 of the smaller societies,

228 will become the supreme law of the land.

229These will be merely acts of usurpation,

230 and will deserve to be treated as such.

231Hence we perceive

232 that the clause which declares the supremacy

233 of the laws of the Union,

234 like the one we have just before considered,

235 only declares a truth,

236 which flows immediately and necessarily

237 from the institution of a federal government.

238It will not, I presume, have escaped observation,

239 that it EXPRESSLY confines this supremacy

240 to laws made PURSUANT TO THE CONSTITUTION;

241 which I mention merely as an instance of caution

242 in the convention;

243 since that limitation would have been

244 to be understood,

245 though it had not been expressed.

246Though a law, therefore,

247 laying a tax for the use of the United States

248 would be supreme in its nature,

249 and could not legally be opposed or controlled,

250 yet a law for abrogating or preventing

251 the collection of a tax

252 laid by the authority of the State,

253 (unless upon imports and exports),

254 would not be the supreme law of the land,

255 but a usurpation of power

256 not granted by the Constitution.

257As far as an improper accumulation of taxes

258 on the same object

259 might tend to render the collection

260 difficult or precarious,

261 this would be a mutual inconvenience,

262 not arising from a superiority or defect of power

263 on either side,

264 but from an injudicious exercise of power

265 by one or the other,

266 in a manner equally disadvantageous to both.

267It is to be hoped and presumed, however,

268 that mutual interest would dictate a concert

269 in this respect

270 which would avoid any material inconvenience.

271The inference from the whole is,

272 that the individual States would,

273 under the proposed Constitution,

274 retain an independent and uncontrollable authority

275 to raise revenue to any extent

276 of which they may stand in need,

277 by every kind of taxation,

278 except duties on imports and exports.

279It will be shown in the next paper

280 that this CONCURRENT JURISDICTION

281 in the article of taxation

282 was the only admissible substitute

283 for an entire subordination,

284 in respect to this branch of power,

285 of the State authority to that of the Union.

286PUBLIUS.