FReeper Book Club: The Debate over the Constitution, Federalist #33

It is time for Hamilton to engage in the exegesis of that clause in the Constitution through which future governments would march entire legal and bureaucratic armies. He executes this work with panache – and attitude.

² The residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause.

³ The last clause of the 8th Section of the 1st 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 2nd clause of the 6th 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.”

⁴ These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution.

⁵ 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.

⁶ 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.

⁷ 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.

⁹ What is the ability to do a thing but the power of employing the means necessary to its execution?

¹² What is the power of laying and collecting taxes but a legislative power, or a power of making laws, to lay and collect taxes?

¹³ What are the proper means of executing such a power but necessary and proper laws?

¹⁴ 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.

¹⁵ 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?

¹⁶ 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.

¹⁷ But the same process will lead to the same result in relation to all other powers declared in the Constitution.

¹⁸ 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.

¹⁹ If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated.

²⁰ The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.

²² The answer is that it could only have been done for greater caution and to guard against all caviling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union.

²³ 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.

²⁴ 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.

²⁵ 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?

²⁶ 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.

²⁷ 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.

²⁸ The propriety of a law in a constitutional light must always be determined by the nature of the powers upon which it is founded.

²⁹ 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?

³⁰ Suppose again that upon the pretense of an interference with its revenues, it should undertake to abrogate a land tax 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?

³¹ 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.

³² But it is said that the laws of the Union are to be the supreme law of the land.

³³ But what inference can be drawn from this, or what would they amount to if they were not to be supreme?

³⁸ If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct.

³⁹ 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.

⁴⁰ It would otherwise be a mere treaty, dependent on the good faith of the parties and not a government, which is only another word for political power and supremacy.

⁴¹ 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.

⁴² These will be merely acts of usurpation and will deserve to be treated as such.

⁴³ 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.

⁴⁴ 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.

⁴⁵ 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.

⁴⁶ 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.

⁴⁷ It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience.

⁴⁸ 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.

⁴⁹ 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.

Despite its initial appearance, this is a very significant piece in understanding the Hamiltonian concept of government. It centers around taxation at first, impelled in that direction by Brutus’ pen in his #6, but it turns out to be quite a bit more than that.

The topic is the Necessary and Proper Clause, the last clause of Article I, Section 8, wherein the powers granted to Congress are delineated, and which conclude with a masterpiece of ambiguity around which entire bodies of jurisprudence will be spun. It is a principle that to Hamilton is so obvious that it needs expression more than defense, and so he develops a logical train that is, at least until its last proposition, very strong indeed.

⁹ What is the ability to do a thing but the power of employing the means necessary to its execution?

¹² What is the power of laying and collecting taxes but a legislative power, or a power of making laws, to lay and collect taxes?

¹³ What are the proper means of executing such a power but necessary and proper laws?

“Such a power” is an unnecessary qualification. This essay has turned to address far more than taxation. It is Hamilton’s firmest belief that a government must have “sufficient”, meaning unlimited, powers within those areas of responsibility assigned to it.

¹⁷ But the same process will lead to the same result in relation to all other powers declared in the Constitution.

Suddenly the reader enters very deep waters indeed. Hamilton’s concept of government is one of unlimited power restrained by scope, that is, a government omnipotent within a narrow band of action – the “enumerated powers” – outside of which it is essentially powerless. Taxation is only one of these. For Hamilton it is the scope of the government that is to be controlled. For his opponents, aware of the ambiguities within the expressions of that scope, it is an open road to omnipresence as well as omnipotence. For them the power as well must be subject to bounds in the face of the inevitable expansion of scope. For them an expression of this is to be found in the First Amendment: “Congress shall make no law respecting…” It is evident from this that these are two very different models of government, and that they will need to be forced to coexist.

One sees clearly at last that Hamilton’s plea for a powerful central government is based on his recognition of the fatal flaws of a weak one (23), both in history and in his personal experience with respect to the Confederation Congress. So how shall the powers of this new government be best expressed to its own, and its people’s benefit, and restrained for the same reasons? Shall it be by scope, by power, or by both?

Hamilton will speak first in this piece, and his opponents have the final word somewhat later. His is that a government constructed along the lines of a machine, with gears finely machined to high tolerances, will be restricted by its own nature by the structure of its constituent parts. It will not grow because it cannot. For the greatest efficiency and longevity, those parts must be diamond-hard within their own bounds lest the entire mechanism fall apart. Thus, within the enumerated powers, the federal government must be unrestrained.

¹⁸ 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.

The problem philosophically is that necessity and propriety are two entirely separate attributes of any action. One may imagine an action perfectly proper under the proposed Constitution, such as a congressional impost tax laid upon products from the planet Mars, proper inasmuch as it is well within the authority of Congress to enact such legislation, unnecessary because there aren’t any such products. More to the point, one may also imagine an action perfectly necessary, at least under any commonsense interpretation of the Constitution, that is quite improper, such as legal restrictions on freedom of speech applied to organized subversion, such as were enacted during the early days of the Cold War against Communist exhortations to overthrow the existing government.

But for Hamilton the absolutist, necessity confers propriety, which is to say that the check really is blank, at least with regard to those responsibilities assigned to the federal government. Who is to say what “necessary and proper” means? The federal government itself, on the former point. On the latter, the people.

²⁶ I answer…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.

Taken out of context this is a little oblique – the “first instance” concerns necessity, the “last,” propriety, and Hamilton is stating that the people are, in the end, to be the final judge of both. He does recognize the difference after all. The remedy, however, is the ballot box, and if that fails – the cartridge box. It is a stark, clean model of government that fails to account for the expansion of the government in between these two exigencies.

Hamilton moves to a consideration of the supremacy of the federal government over those concerns that might be construed to be of mutual interest to the state governments. The reader re-enters the arena of taxation, and here Hamilton is at his most pragmatic.

⁴⁷ It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience.

In other words, it is Hamilton’s hope, to be fully validated by the ensuing two centuries of government action, that the cow should be able to fill two buckets if the milkmaids are careful. The cynic notes that the phrase “mutual interest” includes the respective governments and excludes their citizens. Hamilton promises to continue this topic in the next paper.

⁴⁹ 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.

In short, the state governments must accept the second bucket of milk or none at all. But it is very much in keeping with Hamilton’s system, and now the full implications of federal supremacy within its designated areas of interest becomes apparent. The states may have their taxes, but not within the most lucrative areas of impost that are specifically reserved to the federal government. Quite literally, everywhere the interests of state and federal government collide, it is the latter who will win out. Yet Hamilton insists an accommodation between state and federal governments is possible, indeed, is written into the new system. It is an odd sort of accommodation, the federal government being limited to a scope it will desperately struggle to expand, the state governments by powers which they will not possess. Both Hamilton and his opponents realized the implications of this, but both were not equally happy with them.

Ping! The thread has been posted.

This thread would normally have been posted on Monday, 5 July. Due to the holiday weekend, we’re posting it two days early. This will give people a chance to read at their leisure over the weekend, take notes and debate.

Earlier threads:

Under the Articles the states were superior to the Congressional government in all matters. This power existed absent any clause in the Articles.

The notion of implied powers thus precedes the Constitution.

Rather than wail against the Constitution, imagine instead that the states obeyed the Articles they drafted and ratified.

This second time around, under the Constitution, there is no doubt that the law made pursuant thereof is not to be blown off.

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