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.