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To the People of the State of New York:
THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the
following clause. The last clause of the eighth section of the first article of the plan under consideration authorizes
the national legislature "to make all laws which shall be NECESSARY and PROPER for carrying into execution
THE POWERS by that Constitution vested in the government of the United States, or in any department or officer
thereof"; and the second clause of the sixth article declares, "that the Constitution and the laws of the United States
made IN PURSUANCE THEREOF, and the treaties made by their authority shall be the SUPREME LAW of
the land, any thing in the constitution or laws of any State to the contrary notwithstanding."
These two clauses have been the source of much virulent invective and petulant declamation against the proposed
Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the
pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the
hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor
profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to
contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of
the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were
repeated in every article. They are only declaratory of a truth which would have resulted by necessary and
unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified
powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so
copiously vented against this part of the plan, without emotions that disturb its equanimity.
What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of
employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making
LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and
collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What
are the proper means of executing such a power, but NECESSARY and PROPER laws? This simple train of
inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts
us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and
PROPER for the execution of that power; and what does the unfortunate and culumniated provision in question do
more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting
taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER
to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the
immediate subject under consideration, and because it is the most important of the authorities proposed to be
conferred upon the Union. But the same process will lead to the same result, in relation to all other powers
declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has
been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is
any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is
predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly
harmless.
But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for
greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to
curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a
principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the
State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so
cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the
precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to
question the great and essential truth which it is manifestly the object of that provision to declare.
But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for
executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple
grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national
government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its
constituents in the last. If the federal government should overpass the just bounds of its authority and make a
tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and
take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence
justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers
upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be
imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident
that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose,
again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax
imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent
jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State
governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners
who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud
calculated to obscure the plainest and simplest truths.
But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be
drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount
to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is
prescribed are bound to observe. This results from every political association. If individuals enter into a state of
society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies
enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its
constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It
would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only
another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts
of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the
residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of
usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the
supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which
flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped
observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE
CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would
have been to be understood, though it had not been expressed.
Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not
legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority
of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of
power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend
to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority
or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner
equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a
concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the
individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to
raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports
and exports. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of
taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the
State authority to that of the Union.
PUBLIUS.
THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the
following clause. The last clause of the eighth section of the first article of the plan under consideration authorizes
the national legislature "to make all laws which shall be NECESSARY and PROPER for carrying into execution
THE POWERS by that Constitution vested in the government of the United States, or in any department or officer
thereof"; and the second clause of the sixth article declares, "that the Constitution and the laws of the United States
made IN PURSUANCE THEREOF, and the treaties made by their authority shall be the SUPREME LAW of
the land, any thing in the constitution or laws of any State to the contrary notwithstanding."
These two clauses have been the source of much virulent invective and petulant declamation against the proposed
Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the
pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the
hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor
profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to
contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of
the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were
repeated in every article. They are only declaratory of a truth which would have resulted by necessary and
unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified
powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so
copiously vented against this part of the plan, without emotions that disturb its equanimity.
What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of
employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making
LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and
collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What
are the proper means of executing such a power, but NECESSARY and PROPER laws? This simple train of
inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts
us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and
PROPER for the execution of that power; and what does the unfortunate and culumniated provision in question do
more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting
taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER
to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the
immediate subject under consideration, and because it is the most important of the authorities proposed to be
conferred upon the Union. But the same process will lead to the same result, in relation to all other powers
declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has
been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is
any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is
predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly
harmless.
But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for
greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to
curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a
principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the
State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so
cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the
precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to
question the great and essential truth which it is manifestly the object of that provision to declare.
But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for
executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple
grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national
government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its
constituents in the last. If the federal government should overpass the just bounds of its authority and make a
tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and
take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence
justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers
upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be
imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident
that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose,
again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax
imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent
jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State
governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners
who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud
calculated to obscure the plainest and simplest truths.
But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be
drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount
to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is
prescribed are bound to observe. This results from every political association. If individuals enter into a state of
society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies
enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its
constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It
would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only
another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts
of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the
residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of
usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the
supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which
flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped
observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE
CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would
have been to be understood, though it had not been expressed.
Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not
legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority
of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of
power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend
to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority
or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner
equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a
concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the
individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to
raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports
and exports. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of
taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the
State authority to that of the Union.
PUBLIUS.
| FEDERALIST NO. 33 Concerning the General Power of Taxation (con't) - Alexander Hamilton |
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