FEDERALIST No. 33

The Same Subject Continued

(Concerning the General Power of Taxation)

From the Daily Advertiser.

January 3, 1788.

HAMILTON

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 propermeans 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 legitimatb 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.