Federalist No. 33 was written by Alexander Hamilton under the shared pseudonym Publius and published in the Daily Advertiser on January 3, 1788. Its subtitle is “The Same Subject Continued: Concerning the General Power of Taxation.” In this essay, Hamilton answers attacks on two of the most controversial clauses in the Constitution: the Necessary and Proper Clause and the Supremacy Clause.
This paper matters because Hamilton argues that both clauses are far less sinister than opponents claimed. He says they do not create new unlimited powers out of thin air. They simply declare what is already built into the very idea of a functioning federal government: if the Constitution grants powers, it must also grant the means of carrying them into execution, and laws made pursuant to those powers must be supreme within their proper sphere.
Full Text of 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 proper means 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 legitimate 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 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 government, which is only another word for POLITICAL POWER AND SUPREMACY.
But it will not follow from this doctrine that acts of the larger 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 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 laying a tax for the use of a State, would, in like manner, be supreme in its nature, unless there was in the Constitution some provision to the contrary. Neither would the mere grant of a general authority to the Union to lay and collect taxes imply a prohibition on the States to exercise the like authority. This fully answers the objections that would be drawn from the operation of the Supremacy Clause against the concurrent jurisdiction of the States in the article of taxation.
There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
If the foregoing argument is a fair one, it furnishes a lucid answer to the supposed danger from the Supremacy Clause. 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 same truth may be stated in another form: the mere existence of a power to make laws necessary and proper, and of the rule that constitutional federal law is supreme, does not convert every federal act into a lawful one.
PUBLIUS.
Why Federalist No. 33 Matters
Federalist No. 33 matters because Hamilton defends two of the Constitution’s most attacked clauses by arguing that they are fundamentally declaratory, not revolutionary. The Necessary and Proper Clause states that granted powers include the means needed to carry them out, and the Supremacy Clause states that constitutional federal law must prevail within its lawful sphere. Neither clause, he argues, authorizes federal usurpation by itself.
It is also important because Hamilton makes a key limitation explicit: only laws made in pursuance of the Constitution are supreme. Federal acts that exceed constitutional authority are not supreme law at all; they are usurpations. That distinction is doing a ton of work in this paper.
Related Links
- Federalist No. 33 Highlights
- Federalist Papers
- Alexander Hamilton
- Federalist No. 32
- United States Constitution
- Articles of Confederation