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FEDERALIST No. 33

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 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.