FEDERALIST No. 33



The Same Subject Continued

(Concerning the General Power of Taxation)

From the Independent Journal.

Wednesday, January 2, 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