The Same Subject Continued: Concerning the General Power of Taxation
From the Daily Advertiser.
Thursday, January 3, 1788

Author: Alexander 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.

Howdy from Boston! Juliette and I continued our walk down the red lined path of the Freedom Trail today. (Check out today’s video either through our Facebook link to YouTube or the Video Box on the top of our website.) Boston is an incredibly beautiful city and the history is so well preserved! The city and its people have exceeded all of my expectations and it has been an absolute joy to visit.

We were actually able to walk into the Old Granary Burial Ground today. We saw the graves of Paul Revere, John Hancock, Samuel Adams and the men who were killed in the Boston Massacre. It was truly mesmerizing to be able to see the resting places of such heroes! It was also insightful to see how humbly they were buried. Paul Revere’s initial headstone was just a tiny headstone inscribed, “REVERE’S TOMB.” Everywhere we walked there was a statue of an American hero. If only every city could revere our Revolutionary history in such a reverent way.

Juliette and I were in awe as we gazed upon the beautiful Old State House. It was in this house that the Stamp Act was debated and it was from the East Balcony where the Declaration of Independence was first read to the people. Can you imagine such a moment?

FYI, I handed out Constituting America business cards and bracelets to fellow tourists along the way! Constituting America in Boston! (We are going to have bumper stickers soon so if you are interested in one, or even extras to pass out, e mail us!)

In regard to Alexander Hamilton’s essay today, I feel like I should say, “Same Subject Continued,” It is just remarkable to me how often Publius refers to the fact that the states would continue to have their rights, the federal government would remain small, and that the American people would be vigilant if the government ever started to cross its bounds. In today’s reading, Federalist Paper No. 33, Alexander Hamilton states:

“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.”

Need I write more? Spread the word of the pertinent relevancy of our United States Constitution and Federalist Papers! It a “measure to redress the injury done to the constitution.”

God Bless,

Janine Turner

Friday, June 11th, 2010

In Federalist No. 33, Hamilton defends the Necessary and Proper clause, found in Article I, Section 8 of the United States Constitution:

The Congress shall have Power To…….. make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Hamilton’s main defense of the clause, as Professor Knipprath points out, is to say that the clause merely restates a power that exists with or without the clause.

Driven by curiosity as to why the framers included the controversial words, if the power existed with or without them, I did some research.

I found the following information in the excellent resource book, The Heritage Guide to the Constitution, Edwin Meese III Chairman of the Editorial Advisory Board:

The necessary and proper clause served two purposes in the framers’ minds:

1. to allow the Congress to do what was necessary to organize the government (create executive departments, set the number of Supreme Court Justices, divide out judicial power among courts).

2. to help carry out Congress’s enumerated powers contained in Article I, Section 8.

In his essay on pages 146-150, in The Heritage Guide to the Constitution, David Engdahl tells us the opponents of the Constitution nicknamed this clause the “sweeping clause,” or the “general clause,” and Brutus, their spokesperson, said it “leaves the national legislature at liberty, to do everything, which in their judgment is best.”

Engdahl tells us that James Wilson who authored the clause, explained at Pennsylvania’s ratification convention that he saw the clause as “limited,” and “for carrying into execution the foregoing powers.”  Wilson stated that the clause authorizes what is “necessary to render effectual the particular powers that are granted.” In other words, the clause authorizes no more than the powers already enumerated, and is to assist in fully effectuating those powers.

The Necessary and Proper Clause has become the proverbial camel’s nose under the tent, much as the anti-federalists feared.  Congress is able to justify certain laws constitutionally by enacting legislation that is within the scope of its enumerated powers, but the same legislation may also affect areas outside of the enumerated powers, adding to the “federal creep,” unintended by the founders and predicted by the anti-federalists.  As Professor Knipprath points out, the Necessary and Proper Clause is aptly nicknamed the “elastic clause.”

Hamilton’s answer to this problem is clear,

“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.”

This is why it is so important that “We The People” are educated, and understand the “just bounds of authority.” If we don’t know the Constitution, how will we know when it is injured?

Thank you to all of you who are joining us on this educational journey! Your energy and enthusiasm is inspiring, and we are learning from every comment on the blog!

Please continue to forward our web address, http://www.constituting.staging.wpengine.com to your friends, and encourage them to join us.

If you are silently reading along, please add your voice to our blog!!  90 in 90: = 180 is not complete, without YOUR thoughts!!

Have a great weekend!

God Bless,

Cathy Gillespie

Friday, June 11th, 2010

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

After the appearance in the preceding essay of Alexander Hamilton, Esquire, Federalist 33 sees the return of Hamilton, the rhetorical swordsman, slashing at his opponents and parrying their contentions. The target of his invective is the assertion that, though the national government’s power to tax may not be exclusive and can be exercised by the states concurrently with Congress, the necessary and proper clause allows Congress to expand the reach of its substantive powers beyond what is enumerated. Further, the supremacy clause enables Congress to override otherwise valid state laws that are in conflict with such overreaching federal law. In short, Congress might pass laws prohibiting the states to tax in various ways, as a means to protect Congress’s sources of revenue.

The heat of Hamilton’s response is a measure of the significance, then and now, of the bigger question. This is no longer about the power to tax. Rather, this implicates the breadth of the federal government’s power to act and, therefore, the very nature of the federal system and the division of sovereignty created under the Constitution.

This is not the last time that Publius addresses these topics. Madison has his turn in Federalist No. 44. Nor is The Federalist the only forum. The scope of Congress’s discretion to carry into effect its enumerated powers comes up in extended debate as early as the incorporation by the Confederation Congress of Robert Morris’s Bank of North America in 1781. It occurs again with great vigor in the debates in Congress and the Cabinet in 1791 over the chartering of the Bank of the United States. It occurs once more, in the Supreme Court in 1819, in McCulloch v. Maryland. It continues to this day. Not for nothing has this clause been termed the “elastic clause.”

In these debates the course of argument is always the same. As Hamilton points out, the necessary and proper clause merely restates a power that Congress already has by implication. Even if that clause were omitted, Congress could, by the very existence of a grant of substantive power, adopt any law needed to carry out the object of that enumerated power: “What is a power, but the ability or power of doing a thing? What is the ability to do a thing, but the power of employing the means [italics in original] necessary to its execution?…What are the proper means of executing such a power, but necessary and proper laws?” Congress may have only enumerated powers to which it must point whenever it acts. But within those enumerated powers, Congress has plenary authority, including choosing the proper means.

Once a power to adopt any means necessary and proper to an objective is conceded, it becomes necessary to limit the power. Otherwise, an unlimited power to adopt the means needed to achieve delegated and limited ends effectively creates unlimited power to legislate. These “means” can always be connected to some enumerated constitutional objective through linked justifications that, as Jefferson sneered, resemble the rhyme “This Is the House That Jack Built.”

Hamilton avers that only laws that are proper means to the constitutional objective are permitted. What is “proper” must be judged by the nature of the power to which it is directed. Thus, the federal government could not control intestacy laws because those would not be proper to the “national” nature of any federal power under the Constitution. Yet the Supreme Court recently upheld, under that same clause, a federal law that provides for the civil commitment of certain persons deemed dangerous even after they have completed their criminal sentences. While the criminal law under which these people were sentenced had a (bare) connection to the federal commerce power, it is very difficult to understand how the civil commitment law has anything but a very attenuated connection to a federal power. The connection (as Congress makes clear) is to “public safety,” which is not a delegated federal power, but, rather, a state power.

Moreover, the recent health care law imposes an “individual mandate” to purchase health insurance because that is necessary and proper to regulate the interstate health insurance market. The necessary and proper clause has long stretched, one might say, the meaning of the term “elastic.” Hamilton declares that the usual remedy for a violation must be the citizenry’s judgment. Unfortunately, when Congress expands its powers beyond previous bounds by pandering to some item on an interest group’s wish list, there is usually a collective yawn from the electorate. Will reaction to the foregoing examples be different?

Hamilton also analyzes the supremacy clause, which summarizes the fundamental principle that, within its assigned powers, Congress has plenary power that prevails over any conflicting state act. That supremacy principle extends to federal statutes and treaties, as well as to the Constitution itself. By approving the Constitution, the states accepted that its provisions superseded conflicting ones in their constitutions and laws.

Indeed, the supremacy clause principle and the specific listing of Congressional powers was the more benign proposal in Philadelphia. Madison, Hamilton, Washington, and other “large-state” nationalists supported the Virginia Plan that would have given Congress both a broader and more direct veto over state laws and the power to legislate “in all cases to which the Separate States are incompetent; or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” One shudders to imagine what policies such forthright grants would produce in contemporary Congresses when even the fig leaf of limited and delegated powers is removed. On the other hand, a skeptic might respond that, by constitutional subterfuge abetted by a mostly passive Supreme Court, Congress has already arrogated to itself virtually the same breadth of power.

Hamilton argues that only federal laws that themselves are constitutional can be the supreme law of the land. There is nothing to fear from that clause, as long as Congress does not exceed its powers under the other clauses. As discussed above, in that last point lies the rub.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

Friday, June 11th, 2010