Posted on 06/21/2010 7:49:27 AM PDT by Publius
Up until now the anti-Federalist writers had written in general against adopting the Constitution as sent to the states for ratification, arguing for a bill of rights. Some had fired broadsides, while others had applied the surgeon’s scalpel. Brutus – most likely Judge Robert Yates of New York, a delegate to the Constitutional Convention who had walked out, and a colleague of Hamilton – opens up a new front by concentrating on taxation, attacking Hamilton in the area in which he was expert and had given the most thought.
This would prompt Hamilton to abruptly shift emphasis from defense to revenue at precisely the wrong moment for his overall effort. Federalist #29, which was to cap his thoughts on defense, was already written, but was delayed for two weeks while Hamilton hurriedly wrote seven papers to refute Brutus. To Hamilton’s dismay, Brutus had struck hard and hit the target squarely.
1 It is an important question whether the general government of the United States should be so framed as to absorb and swallow up the state governments, or whether on the contrary the former ought not to be confined to certain defined national objects while the latter should retain all the powers which concern the internal police of the states.
2 I have in my former papers offered a variety of arguments to prove that a simple free government could not be exercised over this whole continent, and that therefore we must either give up our liberties and submit to an arbitrary one, or frame a constitution on the plan of confederation.
3 Further reasons might be urged to prove this point, but it seems unnecessary because the principal advocates of the new Constitution admit of the position.
4 The question therefore between us, this being admitted, is whether or not this system is so formed as either directly to annihilate the state governments, or that in its operation it will certainly effect it.
5 If this is answered in the affirmative, then the system ought not to be adopted without such amendments as will avoid this consequence.
6 If on the contrary it can be shown that the state governments are secured in their rights to manage the internal police of the respective states, we must confine ourselves in our inquiries to the organization of the government, and the guards and provisions it contains to prevent a misuse or abuse of power.
7 To determine this question, it is requisite that we fully investigate the nature and the extent of the powers intended to be granted by this Constitution to the rulers.
8 In my last number, I called your attention to this subject and proved, as I think incontrovertibly, that the powers given the Legislature under the 8th Section of the 1st Article had no other limitation than the discretion of the Congress.
9 It was shown that even if the most favorable construction was given to this paragraph that the advocates for the new Constitution could wish, it will convey a power to lay and collect taxes, imposts, duties and excises according to the discretion of the Legislature, and to make all laws which they shall judge proper and necessary to carry this power into execution.
10 This, I showed, would totally destroy all the power of the state governments.
11 To confirm this, it is worth while to trace the operation of the government in some particular instances.
12 The general government is to be vested with authority to levy and collect taxes, duties and excises; the separate states have also power to impose taxes, duties and excises, except that they cannot lay duties on exports and imports without the consent of Congress.
13 Here then, the two governments have concurrent jurisdiction; both may lay impositions of this kind.
14 But then the general government have [added] to this power, authority to make all laws which shall be necessary and proper for carrying the foregoing power into execution.
15 Suppose then, that both governments should lay taxes, duties and excises, and it should fall so heavy on the people that they would be unable, or be so burdensome that they would refuse, to pay them both; would it not be necessary that the General Legislature should suspend the collection of the state tax?
16 It certainly would.
17 For if the people could not, or would not, pay both, they must be discharged from the tax to the state, or the tax to the general government could not be collected.
18 The conclusion, therefore, is inevitable that the respective state governments will not have the power to raise one shilling in any way but by the permission of the Congress.
19 I presume no one will pretend that the states can exercise legislative authority or administer justice among their citizens for any length of time without being able to raise a sufficiency to pay those who administer their governments.
20 If this be true, and if the states can raise money only by permission of the general government, it follows that the state governments will be dependent on the will of the general government for their existence.
21 What will render this power in Congress effectual and sure in its operation is that the government will have complete judicial and executive authority to carry all their laws into effect, which will be paramount to the judicial and executive authority of the individual states; in vain therefore will be all interference of the legislatures, courts, or magistrates of any of the states on the subject, for they will be subordinate to the general government and engaged by oath to support it, and will be constitutionally bound to submit to their decisions.
22 The General Legislature will be empowered to lay any tax they choose, to annex any penalties they please to the breach of their revenue laws, and to appoint as many officers as they may think proper to collect the taxes.
23 They will have authority to farm the revenues and to vest the farmer general with his subalterns, with plenary powers to collect them, in any way which to them may appear eligible.
24 And the courts of law which they will be authorized to institute will have cognizance of every case arising under the revenue laws, the conduct of all the officers employed in collecting them, and the officers of these courts will execute their judgments.
25 There is no way, therefore, of avoiding the destruction of the state governments whenever the Congress please to do it unless the people rise up and with a strong hand resist and prevent the execution of constitutional laws.
26 The fear of this will, it is presumed, restrain the general government for some time within proper bounds, but it will not be many years before they will have a revenue and force at their command which will place them above any apprehensions on that score.
27 How far the power to lay and collect duties and excises may operate to dissolve the state governments and oppress the people it is impossible to say.
28 It would assist us much in forming a just opinion on this head to consider the various objects to which this kind of taxes extend in European nations and the infinity of laws they have passed respecting them.
29 Perhaps, if leisure will permit, this may be essayed in some future paper.
30 It was observed in my last number that the power to lay and collect duties and excises would invest the Congress with authority to impose a duty and excise on every necessary and convenience of life.
31 As the principal object of the government in laying a duty or excise will be to raise money, it is obvious that they will fix on such articles as are of the most general use and consumption, because unless great quantities of the article on which the duty is laid is used, the revenue cannot be considerable.
32 We may therefore presume that the articles which will be the object of this species of taxes will be either the real necessaries of life, or if not these, such as from custom and habit are esteemed so.
33 I will single out a few of the productions of our own country which may, and probably will, be of the number.
34 Cider is an article that most probably will be one of those on which an excise will be laid because it is one which this country produces in great abundance, which is in very general use, is consumed in great quantities, and which may be said too not to be a real necessary of life.
35 An excise on this would raise a large sum of money in the United States.
36 How would the power to lay and collect an excise on cider, and to pass all laws proper and necessary to carry it into execution, operate in its exercise?
37 It might be necessary in order to collect the excise on cider to grant to one man in each county an exclusive right of building and keeping cider mills, and oblige him to give bonds and security for payment of the excise; or if this was not done, it might be necessary to license the mills which are to make this liquor and to take from them security to account for the excise; or if otherwise a great number of officers must be employed to take account of the cider made and to collect the duties on it.
38 Porter, ale and all kinds of malt liquors are articles that would probably be subject also to an excise.
39 It would be necessary in order to collect such an excise to regulate the manufactory of these that the quantity made might be ascertained, or otherwise security could not be had for the payment of the excise.
40 Every brewery must then be licensed and officers appointed to take account of its product and to secure the payment of the duty or excise before it is sold.
41 Many other articles might be named which would be objects of this species of taxation, but I refrain from enumerating them.
42 It will probably be said by those who advocate this system that the observations already made on this head are calculated only to inflame the minds of the people with the apprehension of dangers merely imaginary.
43 That there is not the least reason to apprehend the General Legislature will exercise their power in this manner.
44 To this I would only say that these kinds of taxes exist in Great Britain and are severely felt.
45 The excise on cider and perry was imposed in that nation a few years ago, and it is in the memory of every one who read the history of the transaction what great tumults it occasioned.
46 This power, exercised without limitation, will introduce itself into every comer of the city and country:
47 To all these different classes of people and in all these circumstances in which it will attend them, the language in which it will address them will be give! give!
48 A power that has such latitude, which reaches every person in the community in every conceivable circumstance and lays hold of every species of property they possess and which has no bounds set to it but the discretion of those who exercise it: I say such a power must necessarily from its very nature swallow up all the power of the state governments.
49 I shall add but one other observation on this head which is this: it appears to me a solecism for two men or bodies of men to have unlimited power respecting the same object.
50 It contradicts the scripture maxim which [says] “no man can serve two masters,” the one power or the other must prevail, or else they will destroy each other, and neither of them effect their purpose.
51 It may be compared to two mechanic powers acting upon the same body in opposite directions; the consequence would be, if the powers were equal, the body would remain in a state of rest, or if the force of the one was superior to that of the other, the stronger would prevail and overcome the resistance of the weaker.
52 But it is said by some of the advocates of this system, “that the idea that Congress can levy taxes at pleasure is false and the suggestion wholly unsupported; that the preamble to the Constitution is declaratory of the purposes of the Union, and the assumption of any power not necessary to establish justice, etc., to provide for the common defense, etc. will be unconstitutional. Besides, in the very clause which gives the power of levying duties and taxes, the purposes to which the money shall be appropriated are specified, namely, to pay the debts and provide for the common defense and general welfare.” 1
53 I would ask those who reason thus to define what ideas are included under the terms “to provide for the common defense and general welfare”?
54 Are these terms definite, and will they be understood in the same manner and to apply to the same cases by every one?
55 No one will pretend they will.
56 It will then be matter of opinion what tends to the general welfare, and the Congress will be the only judges in the matter.
57 To provide for the general welfare is an abstract proposition which mankind differ in the explanation of, as much as they do on any political or moral proposition that can be proposed; the most opposite measures may be pursued by different parties, and both may profess that they have in view the general welfare; and both sides may be honest in their professions, or both may have sinister views.
58 Those who advocate this new Constitution declare they are influenced by a regard to the general welfare; those who oppose it declare they are moved by the same principle; and I have no doubt but a number on both sides are honest in their professions; and yet nothing is more certain than this: that to adopt this Constitution, and not to adopt it, cannot both of them be promotive of the general welfare.
59 It is as absurd to say that the power of Congress is limited by these general expressions, “to provide for the common safety and general welfare,” as it would be to say that it would be limited had the Constitution said they should have power to lay taxes, etc., at will and pleasure.
60 Were this authority given, it might be said that under it the Legislature could not do injustice or pursue any measures but such as were calculated to promote the public good and happiness.
61 For every man, rulers as well as others, are bound by the immutable laws of God and reason always to will what is right.
62 It is certainly right and fit that the governors of every people should provide for the common defense and general welfare; every government, therefore, in the world, even the greatest despot, is limited in the exercise of his power.
63 But however just this reasoning may be, it would be found in practice a most pitiful restriction.
64 The government would always say their measures were designed and calculated to promote the public good, and there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.
65 There are others of the favorers of this system who admit that the power of the Congress under it with respect to revenue will exist without limitation, and contend that so it ought to be.
66 It is said, “The power to raise armies, to build and equip fleets, and to provide for their support ought to exist without limitation because it is impossible to foresee, or to define, the extent and variety of national exigencies or the correspondent extent and variety of the means which may be necessary to satisfy them.”
67 This, it is said, “is one of those truths which, to correct and unprejudiced minds, carries its own evidence along with it. It rests upon axioms as simple as they are universal: the means ought to be proportioned to the end; the person, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained." 2
68 This same writer insinuates that the opponents to the plan promulgated by the Convention manifests a want of candor in objecting to the extent of the powers proposed to be vested in this government, because he asserts with an air of confidence that the powers ought to be unlimited as to the object to which they extend, and that this position, if not self-evident, is at least clearly demonstrated by the foregoing mode of reasoning.
69 But with submission to this author’s better judgment, I humbly conceive his reasoning will appear upon examination more specious than solid.
70 The means, says the gentleman, ought to be proportioned to the end; admit the proposition to be true, it is then necessary to inquire what is the end of the government of the United States in order to draw any just conclusions from it.
71 Is this end simply to preserve the general government and to provide for the common defense and general welfare of the union only?
72 Certainly not: for beside this, the state governments are to be supported and provision made for the managing such of their internal concerns as are allotted to them.
73 It is admitted, “that the circumstances of our country are such as to demand a compound instead of a simple, a confederate, instead of a sole government,” that the objects of each ought to be pointed out, and that each ought to possess ample authority to execute the powers committed to them.
74 The government then, being complex in its nature, the end it has in view is so also, and it is as necessary that the state governments should possess the means to attain the ends expected from them as for the general government.
75 Neither the general government nor the state governments ought to be vested with all the powers proper to be exercised for promoting the ends of government.
76 The powers are divided between them: certain ends are to be attained by the one, and other certain ends by the other, and these taken together include all the ends of good government.
77 This being the case, the conclusion follows that each should be furnished with the means to attain the ends to which they are designed.
78 To apply this reasoning to the case of revenue, the general government is charged with the care of providing for the payment of the debts of the United States, supporting the general government and providing for the defense of the Union.
79 To obtain these ends, they should be furnished with means.
80 But does it thence follow that they should command all the revenues of the United States?
81 Most certainly it does not!
82 For if so, it will follow that no means will be left to attain other ends as necessary to the happiness of the country as those committed to their care.
83 The individual states have debts to discharge, their legislatures and executives are to be supported, and provision is to be made for the administration of justice in the respective states.
84 For these objects the general government has no authority to provide, nor is it proper it should.
85 It is clear then that the states should have the command of such revenues as to answer the ends they have to obtain.
86 To say, “that the circumstances that endanger the safety of nations are infinite,” and from hence to infer that all the sources of revenue in the states should be yielded to the general government is not conclusive reasoning, for the Congress are authorized only to control in general concerns and not regulate local and internal ones, and these are as essentially requisite to be provided for as those.
87 The peace and happiness of a community is as intimately connected with the prudent direction of their domestic affairs and the due administration of justice among themselves, as with a competent provision for their defense against foreign invaders, and indeed more so.
88 Upon the whole, I conceive that there cannot be a clearer position than this: that the state governments ought to have an uncontrollable power to raise a revenue adequate to the exigencies of their governments, and, I presume, no such power is left them by this Constitution.
[1] Vide “An Examination into the Leading Principles of the Federal Constitution”, printed in Philadelphia, page 34.
[2] Vide Federalist #23.
Brutus’ Critique
Suddenly the battleground shifts, and Hamilton, who has been steadily advancing on the solid basis of a federal government capable of defending itself, finds himself outflanked by the furious charge of Brutus from another direction entirely. The accusation is a familiar one: that the powers granted by the proposed Constitution will allow, even impel, the federal government to marginalize and absorb those of the states. But the basis on which this will happen is not, in Brutus’ opinion, military, but the simple fact that both levels of government will be competing for a single source of revenue, and that the structure of the Constitution will favor the federal government by making it the sole judge of the proper distribution of both powers and revenue. But the root issue is whether the new federal government will annihilate the state governments.
5 If this is answered in the affirmative, then the system ought not to be adopted without such amendments as will avoid this consequence.
6 If on the contrary it can be shown that the state governments are secured in their rights to manage the internal police of the respective states, we must confine ourselves in our inquiries to the organization of the government, and the guards and provisions it contains to prevent a misuse or abuse of power.
Brutus cites out one of his previous essays to the effect that the powers proposed to be given to Congress admit of no controlling authority other than that of Congress itself (8). The modern reader is reminded that the principle of judicial review by the Supreme Court was yet to be established. The image Brutus is conjuring is one of a body of men tempted by both power and money, and answerable to none but themselves. At 15 he suggests that this could result in a people overtaxed by both state and federal governments, and that the federal government would address this case by simply suspending the collection of state taxes. At 16 he goes on to state it a certainty, and at 20 he says that it means that the very existence of state governments would be dependent on the good will of the federal.
Yet the reader observes some two centuries hence that the state governments are still robust enough to tax their respective citizens heartily; not, to be sure, to the degree that the federal government does, but not inconsiderably either. This suggests that the issue was actually less one of two equivalent government entities competing for a single teat, but a case of subordination in which both suck amounts commensurate with their respective strengths. Brutus’ concern is that the milk might run dry before both are sated.
He next suggests that Congress will have the authority to enact tax-farming (23), a practice instituted among the Romans and repeated by the Macedonian Greeks, the Seljuk and Ottoman Turks, and as of the writing, in France as well. Brutus’ sudden reference to “farmer general” is a direct translation of fermiers généraux, the French name for that group of tax collectors who helped bankrupt France. The concept is simple: certain favorites pay central authority tax money from their own pockets and are granted an unlimited license to collect it themselves from the citizens from whom it is nominally due – with whatever degree of profit that authority may allow. It is a recognition that government is most effective on a local basis; it is also fantastically prone to abuse. It is, however, what we might term today a boundary case, and Brutus admits it.
27 How far the power to lay and collect duties and excises may operate to dissolve the state governments and oppress the people it is impossible to say.
28 It would assist us much in forming a just opinion on this head to consider the various objects to which this kind of taxes extend in European nations and the infinity of laws they have passed respecting them.
It would also point to the results they might achieve, one of which was Louis XVI losing his head at the guillotine for that abuse, some five years after the publication of Brutus’ piece. Brutus would have considered it grim confirmation of a malign principle.
Where might this taxation might be pointed in the United States? Everywhere, Brutus thunders, from ladies at their toilette to gentlemen in their kitchen, in bedchambers and studies, in merchants’ storehouses and mechanics’ shops, in farm and cottage, “and finally, it will light upon the head of every person in the United States.” (46) Few modern Americans could find fault with this summation; it is, if anything, an understatement. The advent of the income tax, a form of direct taxation, flew counter even to Hamilton’s recommendations (Federalist #21).
The reader might be tempted to smile at the specific examples Brutus cites prior to this dire prediction – cider (34), porter, ale and malt liquors (38) – these are all alcoholic beverages, and taxing them at the mill or brewery (37, 40) is a startlingly accurate prediction of Prohibition policies that continue to this day. From Brutus’ point of view it is as if a government so dastardly as to tax alcoholic beverages were scarcely to be imagined. Yet one was to do so only four years later, and not in jest, in the form of a tax on whiskey levied by the sitting Secretary of the Treasury, none other than Alexander Hamilton himself. It was to result three years afterward in that brief and fascinating episode in American history known as the Whiskey Rebellion, more of which will come in a later piece.
Yates the judge surfaces in Brutus’ next point – that a Congress limited to “promoting the General Welfare” as mentioned in the Preamble of the Constitution, was in fact limited not at all.
54 Are these terms definite, and will they be understood in the same manner and to apply to the same cases by every one?
They are, in fact, impossibly vague, and might be used to justify any action Congress might undertake (56, 58, 60), and that in fact, the only check on such expansion of powers would be the very Congress that undertook them (64).
The reader is then treated to a refutation of Hamilton’s own words, as direct a confrontation as has been seen thus far within the columns of the New York newspapers that published the Federalist. These are not specific on the topic of taxation but apply instead to the overall set of powers to be granted to the federal government, or more specifically, to the philosophy behind their granting.
66 It is said, “The power to raise armies, to build and equip fleets, and to provide for their support ought to exist without limitation because it is impossible to foresee, or to define, the extent and variety of national exigencies or the correspondent extent and variety of the means which may be necessary to satisfy them.”
69 But with submission to this author’s better judgment, I humbly conceive his reasoning will appear upon examination more specious than solid.
This is the case for powers granted both to state and federal governments, objects Brutus, not simply to the federal (76), and in fact applies with perfect validity to either so long as both their objectives and limitations, their separate spheres of activity and influence, are clearly delineated. It is also the case for the respective abilities to procure revenue through taxation (80, 83). With the latter Brutus has come full circle, closing with the admonition that the states as well as the federal government ought to have “uncontrollable” power to raise revenue, and that the proposed Constitution protects only the federal government’s privileges in this arena.
Brutus has struck Hamilton to the quick in this piece, and the latter will scramble to refute its specifics in the ensuing days. To his own readers the specter of a federal government successively starving and then gobbling up its state counterparts would have seemed the more alarming of his dire predictions. To the modern reader, whose income taxes to both federal and state governments are due the very same day, that point must seem less important than the taxes themselves, which have in the two centuries to follow mushroomed to a level that make Brutus’ darkest mutterings seem like the promise of a tax-free utopia.
Discussion Topics
That may be true but the illness was incubated but the likes of Alexander Hamilton and John Marshal and was given a tremendous boost by Abraham Lincoln. Woodrow Wilson and FDR merely administered the coup de gras.
Of course, the adults at the convention disagreed.
Excessive taxation...what an idea.
“In making a dictator, we followed the example of the most glorious, magnanimous, and skillful nations. In great dangers, this power has been given. Rome had furnished us with an illustrious example. America found a person for that trust: she looked to Virginia for him. We gave a dictatorial power to hands that used it gloriously; and which were rendered more glorious by surrendering it up.”
If alive today, the attorney Henry would make a terrific ambulance chaser.
Patrick Henry’s two speeches at the Virginia Ratifying Convention will be covered by us around Christmas. It will receive the same respectful treatment as the Federalist and other anti-Federalist writers.
Actaully, only the States are prohibited from issuing bills of credit, or from making paper money legal tender. (Article I, section 10). Congress is not barred from doing either (see Article I, section 8, cl. 5).
The conceptual necessity of virtue in the citizenry of a constitutional republic is foreign to you.
As opposed to...reality.
Thanks for the qualifier, by the way. It's the only accurate way to put it--no one knows with 100% certainty. I happen to think it was someone else.
You like to hector me a lot about what MY plan would be, as if that's relevant to a critique of the Constitution. I believe this statement of Brutus' to be true---that some form of confederation ought to have remained in place.
You say the Constitution is the end-all, be-all---the best mankind will EVER do, right there, on that paper, conceived in Philadelphia, 1787. I say it's possible to create something better. Maybe it will never happen. But it's possible.
There are some OBVIOUS errors, which should be removed. Other problems are more complicated, but we know the current system doesn't work, e.g., the federal judiciary. Not just that it doesn't work, but that it creates much constitutional mischief. A better article 3. Specific mention of "secession", a rule one way or the other. Express delegation only. No house. Only a congress, representing the states. States hold the right of recall at any time. THEY determine the mode of their elections. etc
Brutus was clearly proven wrong.
You like to hector me a lot about what MY plan would be
If you wish to be rid of the Constitution, there must be something to take its place, and to ask is not hectoring but merely a logical question.
As for your last paragraph, brighter and better educated minds than yours considered the options.
The one house Congress is especially humorous.
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