to encroach upon the rights of the Union is quite as probable as a
disposition in the Union to encroach upon the rights of the State
governments. What side would be likely to prevail in such a conflict,
must depend on the means which the contending parties could employ
toward insuring success. As in republics strength is always on the side
of the people, and as there are weighty reasons to induce a belief that
the State governments will commonly possess most influence over them,
the natural conclusion is that such contests will be most apt to end to
the disadvantage of the Union; and that there is greater probability of
encroachments by the members upon the federal head, than by the federal
head upon the members. But it is evident that all conjectures of this
kind must be extremely vague and fallible: and that it is by far the
safest course to lay them altogether aside, and to confine our
attention wholly to the nature and extent of the powers as they are
delineated in the Constitution. Every thing beyond this must be left to
the prudence and firmness of the people; who, as they will hold the
scales in their own hands, it is to be hoped, will always take care to
preserve the constitutional equilibrium between the general and the
State governments. Upon this ground, which is evidently the true one,
it will not be difficult to obviate the objections which have been made
to an indefinite power of taxation in the United States.
PUBLIUS.
THE FEDERALIST.
No. XXXII.
The Same Subject Continued
(Concerning the General Power of Taxation)
From the Daily Advertiser.
Thursday, January 3, 1788.
HAMILTON
To the People of the State of New York:
Although I am of opinion that there would be no real danger of the
consequences which seem to be apprehended to the State governments from
a power in the Union to control them in the levies of money, because I
am persuaded that the sense of the people, the extreme hazard of
provoking the resentments of the State governments, and a conviction of
the utility and necessity of local administrations for local purposes,
would be a complete barrier against the oppressive use of such a power;
yet I am willing here to allow, in its full extent, the justness of the
reasoning which requires that the individual States should possess an
independent and uncontrollable authority to raise their own revenues
for the supply of their own wants. And making this concession, I affirm
that (with the sole exception of duties on imports and exports) they
would, under the plan of the convention, retain that authority in the
most absolute and unqualified sense; and that an attempt on the part of
the national government to abridge them in the exercise of it, would be
a violent assumption of power, unwarranted by any article or clause of
its Constitution.
An entire consolidation of the States into one complete national
sovereignty would imply an entire subordination of the parts; and
whatever powers might remain in them, would be altogether dependent on
the general will. But as the plan of the convention aims only at a
partial union or consolidation, the State governments would clearly
retain all the rights of sovereignty which they before had, and which
were not, by that act, EXCLUSIVELY delegated to the United States. This
exclusive delegation, or rather this alienation, of State sovereignty,
would only exist in three cases: where the Constitution in express
terms granted an exclusive authority to the Union; where it granted in
one instance an authority to the Union, and in another prohibited the
States from exercising the like authority; and where it granted an
authority to the Union, to which a similar authority in the States
would be absolutely and totally CONTRADICTORY and REPUGNANT. I use
these terms to distinguish this last case from another which might
appear to resemble it, but which would, in fact, be essentially
different; I mean where the exercise of a concurrent jurisdiction might
be productive of occasional interferences in the POLICY of any branch
of administration, but would not imply any direct contradiction or
repugnancy in point of constitutional authority. These three cases of
exclusive jurisdiction in the federal government may be exemplified by
the following instances: The last clause but one in the eighth section
of the first article provides expressly that Congress shall exercise
“EXCLUSIVE LEGISLATION” over the district to be appropriated as the
seat of government. This answers to the first case. The first clause of
the same section empowers Congress “TO LAY AND COLLECT TAXES, DUTIES,
IMPOSTS AND EXCISES”; and the second clause of the tenth section of the
same article declares that, “NO STATE SHALL, without the consent of
Congress, LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS, except for
the purpose of executing its inspection laws.” Hence would result an
exclusive power in the Union to lay duties on imports and exports, with
the particular exception mentioned; but this power is abridged by
another clause, which declares that no tax or duty shall be laid on
articles exported from any State; in consequence of which
qualification, it now only extends to the DUTIES ON IMPORTS. This
answers to the second case. The third will be found in that clause
which declares that Congress shall have power “to establish an UNIFORM
RULE of naturalization throughout the United States.” This must
necessarily be exclusive; because if each State had power to prescribe
a DISTINCT RULE, there could not be a UNIFORM RULE.
A case which may perhaps be thought to resemble the latter, but which
is in fact widely different, affects the question immediately under
consideration. I mean the power of imposing taxes on all articles other
than exports and imports. This, I contend, is manifestly a concurrent
and coequal authority in the United States and in the individual
States. There is plainly no expression in the granting clause which
makes that power EXCLUSIVE in the Union. There is no independent clause
or sentence which prohibits the States from exercising it. So far is
this from being the case, that a plain and conclusive argument to the
contrary is to be deduced from the restraint laid upon the States in
relation to duties on imports and exports. This restriction implies an
admission that, if it were not inserted, the States would possess the
power it excludes; and it implies a further admission, that as to all
other taxes, the authority of the States remains undiminished. In any
other view it would be both unnecessary and dangerous; it would be
unnecessary, because if the grant to the Union of the power of laying
such duties implied the exclusion of the States, or even their
subordination in this particular, there could be no need of such a
restriction; it would be dangerous, because the introduction of it
leads directly to the conclusion which has been mentioned, and which,
if the reasoning of the objectors be just, could not have been
intended; I mean that the States, in all cases to which the restriction
did not apply, would have a concurrent power of taxation with the
Union. The restriction in question amounts to what lawyers call a
NEGATIVE PREGNANT that is, a NEGATION of one thing, and an AFFIRMANCE
of another; a negation of the authority of the States to impose taxes
on imports and exports, and an affirmance of their authority to impose
them on all other articles. It would be mere sophistry to argue that it
was meant to exclude them ABSOLUTELY from the imposition of taxes of
the former kind, and to leave them at liberty to lay others SUBJECT TO
THE CONTROL of the national legislature. The restraining or prohibitory
clause only says, that they shall not, WITHOUT THE CONSENT OF CONGRESS,
lay such duties; and if we are to understand this in the sense last
mentioned, the Constitution would then be made to introduce a formal
provision for the sake of a very absurd conclusion; which is, that the
States, WITH THE CONSENT of the national legislature, might tax imports
and exports; and that they might tax every other article, UNLESS
CONTROLLED by the same body. If this was the intention, why not leave
it, in the first instance, to what is alleged to be the natural
operation of the original clause, conferring a general power of
taxation upon the Union? It is evident that this could not have been
the intention, and that it will not bear a construction of the kind.
As to a supposition of repugnancy between the power of taxation in the
States and in the Union, it cannot be supported in that sense which
would be requisite to work an exclusion of the States. It is, indeed,
possible that a tax might be laid on a particular article by a State
which might render it INEXPEDIENT that thus a further tax should be
laid on the same article by the Union; but it would not imply a
constitutional inability to impose a further tax. The quantity of the
imposition, the expediency or inexpediency of an increase on either
side, would be mutually questions of prudence; but there would be
involved no direct contradiction of power. The particular policy of the
national and of the State systems of finance might now and then not
exactly coincide, and might require reciprocal forbearances. It is not,
however a mere possibility of inconvenience in the exercise of powers,
but an immediate constitutional repugnancy that can by implication
alienate and extinguish a pre-existing right of sovereignty.
The necessity of a concurrent jurisdiction in certain cases results
from the division of the sovereign power; and the rule that all
authorities, of which the States are not explicitly divested in favor
of the Union, remain with them in full vigor, is not a theoretical
consequence of that division, but is clearly admitted by the whole
tenor of the instrument which contains the articles of the proposed
Constitution. We there find that, notwithstanding the affirmative
grants of general authorities, there has been the most pointed care in
those cases where it was deemed improper that the like authorities
should reside in the States, to insert negative clauses prohibiting the
exercise of them by the States. The tenth section of the first article
consists altogether of such provisions. This circumstance is a clear
indication of the sense of the convention, and furnishes a rule of
interpretation out of the body of the act, which justifies the position
I have advanced and refutes every hypothesis to the contrary.
PUBLIUS.
THE FEDERALIST.
No. XXXIII.
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 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
government, 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 FEDERALIST.
No. XXXIV.
The Same Subject Continued
(Concerning the General Power of Taxation)
From the New York Packet.
Friday, January 4, 1788.
HAMILTON
To the People of the State of New York:
I flatter myself it has been clearly shown in my last number that the
particular States, under the proposed Constitution, would have COEQUAL
authority with the Union in the article of revenue, except as to duties
on imports. As this leaves open to the States far the greatest part of
the resources of the community, there can be no color for the assertion
that they would not possess means as abundant as could be desired for
the supply of their own wants, independent of all external control.
That the field is sufficiently wide will more fully appear when we come
to advert to the inconsiderable share of the public expenses for which
it will fall to the lot of the State governments to provide.
To argue upon abstract principles that this co-ordinate authority
cannot exist, is to set up supposition and theory against fact and
reality. However proper such reasonings might be to show that a thing
OUGHT NOT TO EXIST, they are wholly to be rejected when they are made
use of to prove that it does not exist contrary to the evidence of the
fact itself. It is well known that in the Roman republic the
legislative authority, in the last resort, resided for ages in two
different political bodies not as branches of the same legislature, but
as distinct and independent legislatures, in each of which an opposite
interest prevailed: in one the patrician; in the other, the plebian.
Many arguments might have been adduced to prove the unfitness of two
such seemingly contradictory authorities, each having power to ANNUL or
REPEAL the acts of the other. But a man would have been regarded as
frantic who should have attempted at Rome to disprove their existence.
It will be readily understood that I allude to the COMITIA CENTURIATA
and the COMITIA TRIBUTA. The former, in which the people voted by
centuries, was so arranged as to give a superiority to the patrician
interest; in the latter, in which numbers prevailed, the plebian
interest had an entire predominancy. And yet these two legislatures
coexisted for ages, and the Roman republic attained to the utmost
height of human greatness.
In the case particularly under consideration, there is no such
contradiction as appears in the example cited; there is no power on
either side to annul the acts of the other. And in practice there is
little reason to apprehend any inconvenience; because, in a short
course of time, the wants of the States will naturally reduce
themselves within A VERY NARROW COMPASS; and in the interim, the United
States will, in all probability, find it convenient to abstain wholly
from those objects to which the particular States would be inclined to
resort.