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.
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.
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.
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.
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
Hamilton
Federalist 34: Concurrent Federal and State Power to Tax
The Federal and State Powers to Tax Are Almost Identical, Allowing Both to Satisfy Their Needs
UNDER THE CONSTITUTION, EACH STATE GOVERNMENT has coequal authority with the Federal government to lay and collect taxes, except as to duties on imports.
The greatest part of local resources are open to taxation for supplying revenues for the States.
The States therefore possess means as abundant as could be desired for the supply of their own wants.
Coequal Taxing Authority Already Exists and Works Well
Relying upon abstract principles, some argue such coequal taxing authority cannot exist.
Their suppositions and theories fail when measured against fact and reality.
Abstract principles are proper enough to show a thing ought not to exist.
But when a thing already exists in fact and reality, and abstract principles are summoned to prove it cannot exist, fact and reality must triumph.
Abstract principles are proper enough to show a thing ought not to exist. But when a thing already exists in fact and reality, and abstract principles are summoned to prove it cannot exist, fact and reality must triumph.
The Dual Roman Legislatures Proved Coequal Authority Can Work
In the Roman republic, the legislative authority of last resort resided in two distinct and independent legislatures.
Each had the power to annul or repeal the acts of the other. I allude to the comitia centuriata – the Century Assembly – and the comitia tributa – the Tribal Assembly. In the Century Assembly the people voted through representatives known as centuries.
It was so arranged to give a superiority to the patrician interest. In the Tribal Assembly numbers prevailed, so the plebian interest was entirely predominant.
It would be easy in the abstract to prove the unfitness of granting each the seemingly contradictory authority to annul or repeal the acts of the other, but an inhabitant of ancient Rome who undertook such an exercise would have been regarded as a lunatic.
These two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness.
Neither the Federal Nor State Governments Can Annul the Acts of the Other
In the case of coequal authority of the Federal government and State governments to lay and collect taxes, neither side has the power to annul the acts of the other.
And in practice there is little reason to apprehend any conflict.
In the course of time, the wants of the States will naturally reduce themselves within a very narrow compass.
In the interim, the United States will probably find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort.
We cannot leave the Federal government entrusted with the care of the national defense without the capacity to provide for the protection of the community against future invasions of the public peace by foreign war or domestic convulsions.
We can form a more precise judgment of the true merits of this question by comparing the proportion of Federal to State objects requiring taxes to sustain them.
We shall discover the Federal objects are altogether unlimited, and the State objects circumscribed within very moderate bounds.
While pursuing this inquiry, one must look beyond the present to the future, to our posterity. Constitutions of civil governments are framed not upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs.
One cannot gauge the extent of any power lodged in a national government by estimating its immediate necessities.
There ought to be a capacity to provide for future contingencies as they may happen.
Since future contingencies are unlimited by nature, the capacity to respond to such contingencies must also be unlimited.
It is possible that a sufficient computation might be had of the quantity of revenue requisite to discharge the subsisting engagements of the Federal government, and to maintain those establishments in times of peace.
While peace is a useful starting point, it would be the extreme of folly to stop there.
We cannot leave the Federal government entrusted with the care of the national defense without the capacity to provide for the protection of the community against future invasions of the public peace by foreign war or domestic convulsions.
And once we commence that undertaking, can we stop at anything less than an indefinite power in the Federal government to provide for emergencies as they may arise?
Judging from the history of mankind, the fiery and destructive passions of war reign more powerfully in the human breast than the mild and beneficent sentiments of peace. To model our political systems upon speculations of lasting tranquility is to calculate on the weaker springs of the human character.
Some assert it is easy to form a rational judgment of a proper provision against probable dangers.
To these individuals we may safely issue a challenge: bring forward your data, so we can confirm your facts are as vague and uncertain as any that could be produced to establish the probable duration of the planet.
Observations confined merely to the prospects of internal attacks deserve no weight.
If we mean to be a commercial people, our policy must be to defend that commerce.
The support of a navy and of naval wars involve contingencies which baffle all political arithmetic.
To its benefit, our Constitution undertakes the novel – and some would say absurd – approach of tying up the hands of government from engaging in an offensive war founded upon reasons of state. Clouds of war have hovered over parts of Europe and the Mediterranean for centuries.
If they should again break forth into a storm, who but we can ensure our own safety?
Even if the storm fails to reach us, what security have we that our tranquility will remain undisturbed from some other cause or quarter?
Peace or war will not always be left to our option, even if we were to practice complete moderation and forsake ambition.
Who could have imagined at the conclusion of the Revolutionary War that France and Britain – wearied and exhausted as they both were – would have looked so soon at each other with so hostile an aspect?
The Instinct to Fight Is More Powerful than the Instinct for Peace
Judging from the history of mankind, the fiery and destructive passions of war reign more powerfully in the human breast than the mild and beneficent sentiments of peace.
To model our political systems upon speculations of lasting tranquility is to calculate on the weaker springs of the human character.
The Greatest Expense of Any Government Is Preparing for War
In every government, the chief sources of expense are wars, rebellions, and the enormous debts they cause.
War and rebellion are the two most mortal diseases of society.
The expenses necessary to guard the body politic against them dwarf those relative to the mere domestic police of a state, the support of its legislative, executive, and judicial departments (along with their different appendages), and the encouragement of agriculture and manufactures (which comprehend almost all the objects of state expenditure).
In the kingdom of Great Britain, not above a fifteenth part of its annual income is appropriated to agriculture and manufactures.
The rest is absorbed in the payment of the interest of debts contracted for carrying on its wars and maintaining its fleets and armies.
Peace or war will not always be left to our option, even if we were to practice complete moderation and forsake ambition. Who could have imagined at the conclusion of the Revolutionary War that France and Britain – wearied and exhausted as they both were – would have looked so soon at each other with so hostile an aspect?
Some might say the necessary expenses of a republic cannot be compared to the expenses incurred in a monarch’s prosecution of ambitious enterprises and vainglorious pursuits.
But if we put aside the extra domestic expenses an ostentatious monarchy entails, the expenses it devotes to war would be proportional to those incurred in the defense of a republic.
In Order to Defend against War and Rebellion, the Expenses of the Federal Government Will Exceed Those of State Governments
Even if the United States endures only a common share of the events which disturb the peace of nations, the objects of Federal expenditures will always far exceed the objects of State and local expenditures.
As proof, one need consider only the enormous debts incurred by the States to complete our revolutionary war for independence.
Once these debts are discharged and the Federal government assumes the burdens of defense, the only call for revenue of any consequence from State governments will be for the sums appropriated annually to pay its own civil list of appointees to the Federal government.
The Potential Expenses of the Federal Government Are Unlimited
We have framed a government for posterity as well as ourselves.
For those provisions designed to be permanent, we ought to calculate permanent causes of expense, not temporary ones.
If this principle be just, a provision in favor of State governments for an annual sum of about 200,000 British pounds would be proper.
The exigencies of the Federal government, on the other hand, are susceptible of no limitation, even in imagination.
In response, some contend State governments ought to command – in perpetuity – an exclusive power to levy taxes to secure revenue for State expenditures beyond the sum of £200,000 needed to pay for their civil lists.
But extending the power of the States to the exclusion of the Federal government would unwisely divert the resources of the community away from those most in need of them to secure the public welfare.
Such a limitation also ignores the potentially unlimited needs of the Federal government.
It Would Be Improper to Divide Sources of Taxation Based on the Comparative Needs of Governments
If the authors of the Constitution had been inclined to divide the sources of taxation between the State and Federal governments in proportion to their comparative needs, all of the available tax sources would have been either been too much or too little for their present needs, and too much for their future needs.
If States were given authority over import duties, they would command two thirds of the resources of the nation to defray from a tenth to a twentieth part of its expenses.
The Federal government would be left with one third of the nation’s resources to defray 9/10ths to 19/20ths of its expenses.
The Constitutional Convention decided concurrent jurisdiction was the only admissible substitute for an entire subordination of State authority to Federal authority in the article of taxation. Had there been any separation of the objects of taxation, the great interests of the United States would have been sacrificed to the great power of the individual States.
Even if the Constitution granted State governments exclusive power of taxing houses and lands, it would not eliminate the shortage of the means supplied to achieve the end envisioned.
State governments would possess one third of the resources of the community to supply one tenth of its wants.
If some other fund could have been selected and appropriated, it still would have been inadequate to discharge the existing debts of the particular State governments, leaving them dependent on the Federal government.
The Constitutional Convention decided concurrent jurisdiction was the only admissible substitute for an entire subordination of State authority to Federal authority in the article of taxation.
Had there been any separation of the objects of taxation, the great interests of the United States would have been sacrificed to the great power of the individual States.
Concurrent jurisdiction was thought preferable to subordination.
Concurrent power over taxation reconciles the need for an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities.
Hamilton