Federalist 33: The Plain Meanings of the Necessary and Proper Clause and the Supremacy Clause
The Plain Meanings of the Necessary and Proper Clause and the Supremacy Clause
THE REMAINING ARGUMENTS against the Federal power to tax focus on two clauses that allegedly will harm the States irremediably.
The first clause – the Necessary and Proper Clause – authorizes the Federal 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.” Art. I, ¶8, cl. 18, emphasis added.
The second– the Supremacy Clause – 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.” Art. I, cl. 2, emphasis added.
The Two Clauses Are Neither Extraordinary Nor Harmful
State and local governments have in some instances misrepresented these powers as pernicious engines that will destroy their governments and exterminate the liberties of the People. Some describe a hideous monster whose devouring jaws would spare neither sex nor age, high nor low, sacred nor profane. And yet, after all this clamor, it may be affirmed with perfect confidence that the constitutional operation of the Federal government would be precisely the same whether these clauses were entirely obliterated or repeated in every article.
The clauses simply declare 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. The proposition is so clear that moderation itself can scarcely listen to the copious railings vented against it.
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The first clause– known as the Necessary and Proper Clause – authorizes the Federal 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.”
Art. I, ¶8, cl. 18.
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The Necessary and Proper Clause Explained
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 simply a legislative power – 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 to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power. The clause under attack does no more than declare the same truth, to wit, that the Federal government – to whom the power of laying and collecting taxes has been given – might pass all laws necessary and proper to carry into effect the execution of that power.
The Power to Tax Is the Most Important Delegated Power
I have explained the meaning of the Necessary and Proper Clause as applied to the power of taxation because it is the most important of the authorities conferred upon the Federal government. The logic supporting its use inexorably lead to the same result in relation to all other powers declared in the Constitution. And it is expressly to execute those powers that the Constitution authorizes the national legislature to pass all necessary and proper laws. Any objection to this clause ought to be referred to the specific power to which it applies. The Necessary and Proper Clause is itself perfectly harmless.
The Necessary and Proper Clause Was Added to Refute Those Who Would Contend Such Power Does Not Exist
But suspicion might ask: Why was the Necessary and Proper Clause introduced? The answer is: for greater caution to guard against the caviling refinements by those who would curtail and evade the legitimate authorities of the Federal government.
The Convention foresaw the greatest threat to our political welfare would be the resistance of State governments to Federal authority, and that nothing should be left to construction on so cardinal a point. But whatever the inducement to it, the wisdom of the precaution is evident from the cry raised against it.
Congress Shall Have the Initial Say on What Is Necessary and Proper
It also may be asked: Who is to judge the necessity and propriety of the laws to be passed for executing the powers of the Federal government?
In the first instance, the Federal government – like every other – must judge the proper exercise of its own powers.
The People Have the Ultimate Say on What Is Necessary and Proper
In the last instance, the power rests with its constituents. If the Federal government should overpass the bounds of its just authority and make a tyrannical use of its powers, the People – whose creature it is – must 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. If the Federal legislature attempted to vary the law of descent in any State, it would be evident it had exceeded its jurisdiction and infringed upon the jurisdiction of that State. If the Federal government (upon the pretense of an interference with its revenues) should undertake to abrogate a land tax imposed by the authority of a State government, said abrogation would be an invasion of the concurrent jurisdiction over this species of tax, which the Constitution assumes exists in State governments? Should there ever be a doubt in this type of case, it would be entirely due to those who have labored to envelop the plainest and simplest of truths in a cloud of obscurities.
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The second– known as the supremacy clause – 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.” Art. VI, cl. 2.
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The Supremacy Clause Is a Logical Statement of Supreme Authority
What inference shall be drawn from the clause stating the laws of the Federal government are to be the supreme law of the land? What would such laws amount to if they were not the supreme law of the land? 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 the larger may enact – pursuant to the powers entrusted to it by its constitution – must necessarily be supreme over those societies, and the individuals of whom they are composed.
If the laws of the larger society were not supreme, each law would be a mere treaty between the larger and smaller society – dependent on the good faith of the parties – and not a government, which is only another word for political power and supremacy.
The Supremacy Clause Extends to Constitutional Acts Only
It does not follow from the doctrine of supremacy 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.
Like the clause authorizing necessary and proper laws, the clause which declares the supremacy of the laws of the United States only declares a truth which flows immediately and necessarily from the institution of a Federal government. It expressly confines this supremacy to laws made pursuant to the Constitution. This is another instance of caution in the Convention, by including in express terms a limitation that would otherwise be necessarily implied.
A new law laying a tax for use by the Federal government would be supreme in its nature, and could not legally be opposed or controlled. But a law abrogating or preventing the collection of a tax laid by a State (aside from 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 State and Federal taxes on the same object might tend to render the collection difficult or precarious, this would be a mere mutual inconvenience. It would arise 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. I would hope and presume that mutual interest would dictate a concert in this respect which would avoid any material inconvenience.
Under the Constitution, State governments 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. In Federalist 34, I will show this concurrent jurisdiction was the only possible substitute for an entire subordination of State taxation authority to that of the Federal government
Hamiltonoriginal Federalist 33