Federalist 33


In Federalist 33, Alexander Hamilton addresses the criticism surrounding the necessary and proper clause and the supremacy clause in the Constitution. Essentially dismissing the criticisms as entirely absurd and misleading, he states that the powers designated in those clauses are obvious and implied by the existing powers of the national government. Included only as a precaution to protect the powers of the federal government from removal by states, the powers specified by those clauses are entirely in accordance with the principles of republican government, so long as laws made under those powers are constitutional and don't infringe on established state powers.

Original Text

Concerning the General Power of Taxation (continued)

Independent Journal
Wednesday, January 2, 1788
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." The remaining arguments against the Constitution regarding taxation are based on two clauses. Article 1, section 8 gives Congress the power "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," while Article 6 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 perniciouspernicious adj. insidious, harmful, deadly 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 equanimityequanimity n. calmness, stability, equilibrium. These clauses have been viciously criticized as giving the federal government the means of destroying local governments and oppressing freedom for all people. However, those arguments are all absurd, as the intended government would be exactly the same with or without those clauses. The powers specified by those clauses are already implied by the mere formation of a federal government that is given specific powers by the Constitution. Thus they are obvious statements that hardly justify the passionate criticisms.
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? A power is the ability to do something. To do something, one must have the power to take the necessary action to do it. A legislative power is a power to make laws. To execute a legislative power is to make laws. Taxation power, requiring laws, is a legislative power. Thus, to execute that legislative taxation power is to make laws necessary and proper to do so.
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 palpablepalpable adj. tangible, plainly seen 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 calumniatedcalumniated adj. maligned, slandered [sic] 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 predicatedpredicated v. affirmed, declared. The declaration itself, though it may be chargeable with tautologytautology n. the unnecessary repetition of an idea, redundancy or redundancy, is at least perfectly harmless. This logical conclusion reveals the true nature of this clause is merely to specify that the power to tax requires the passage of all laws necessary and proper to execute that power; therefore, this clause is undeserving of its slander. Though I focus on taxation power, which is the current debate and one of the most important legislative powers, the clause can also apply to any of Congress's other legislative powers with the same result. While the clause may be criticized for being redundant and unnecessary, it is ultimately 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 cavillingcavilling v. raising trivial objections or criticisms 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 inculcateinculcate v. to teach or influence through persistent repetition, 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. Still, one might ask why the clause was ever included in the Constitution if it was redundant? It was likely only done to protect against those trying to restrict the federal government through petty technical arguments. The Convention probably foresaw, as these papers argue, that state governments would sap federal powers at every possible instance of exclusion or lack of clarity, and thus the clause leaves nothing to chance in protecting those federal powers. In hindsight it's a wise decision considering the current wave of criticism attempting to deny the essential truth of the need for necessary and proper laws.
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 exigencyexigency n. urgency 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 descentlaws of descent inheritance laws 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 abrogateabrogate v. to formally abolish or repeal 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? 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 then who is to judge whether a particular law is considered necessary or proper? This question arises from the granting of powers to the national government, not specifically the clause in question. Ultimately, the national government would decide this question, with the will of the people acting as a check on their power. If the national government abuses its legislative powers, it is up to the people to correct the abuse by appealing to their own standard of necessary and proper laws. The necessity and propriety of a certain law ultimately depends on the reasonable extent of its base power. If the federal government decided to interfere with a state's inheritance, shouldn't it be obvious that it exceeded its authority. Again, if the federal government decided to repeal a state tax law under the pretense of interference of their national revenue powers, wouldn't this clearly violate the principle of concurrent jurisdiction between national and state governments, which the Constitution confirms exists? Thus, necessary and proper laws should be easily distinguishable, with any existing doubt a result of Constitutional critics seeking to obscure its obviousness.
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, pursuantpursuant adj. following, in accordance with 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 residuaryresiduary adj. remaining, leftover 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. The Supremacy Clause say that laws made by Congress are to be the supreme law of the land. This is entirely self-evident, as a law by definition must be supreme. Every political association requires its subjects to follow its laws, or else the laws would amount to nothing. Therefore, just as an individual entering a political society is required to follow that society's laws, a smaller political society—like a state—joining with other states to create a larger political society must likewise follow that larger society's laws. Otherwise the arrangement would be a treaty, dependent on good faith, rather than a national government. However, supremacy only applies to constitutional acts of the federal government, as any invasion of the existing state powers would not held as the supreme law but as usurping state power. As such this clause also only declares an essential truth to having a federal government above the states. Specifying the requirement that a supreme law must be constitutional is merely a precaution, reasonably assumed to be true but stated for clarity.
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 concertconcert n. agreement between at least two different parties 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. Therefore, a tax levied by the national government would be supreme over the states, though a law interfering with a state's right to tax would be unconstitutional and therefore not a supreme law. Instead, that law would be a usurpation by Congress of the state's power. If the mutual taxation of the same object leads to difficulties in collection, it wouldn't be as a result of an improper use of power by one government over another, but rather due to national and/or state governments unfairly overusing their taxation power, harming both in the process. Hopefully mutual interest would lead to an agreement over the amount of taxation between the two levels of government. Overall, it can be inferred that the states have the authority to raise as much revenue as they want through any form of taxation, except import and export taxes, which has already been specified to be a national power. The next paper will show how this concurrent taxation power between state and federal governments is the only reasonable alternative to completely subjugating the states to taxation by the national government.
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