Antifederalist No. 17

FEDERALIST POWER WILL ULTIMATELY SUBVERT STATE AUTHORITY 



     The "necessary and proper" clause has, from the beginning, 
been a thorn in the side of those seeking to reduce federal 
power, but its attack by Brutus served to call attention to it, 
leaving a paper trail of intent verifying its purpose was not to 
give Congress anything the Constitution "forgot," but rather to 
show two additional tests for any legislation Congress should 
attempt:  to wit--that the intended actions would be both 
necessary AND proper to executing powers given under clauses 1-17 
of Article I Section 8.  This is the fameous BRUTUS. 



     This [new] government is to possess absolute and 
uncontrollable powers, legislative, executive and judicial, with 
respect to every object to which it extends, for by the last 
clause of section eighth, article first, it is declared, that the 
Congress shall have power "to make all laws which shall be 
necessary and proper for carrying into execution the foregoing 
powers, and all other powers vested by this Constitution in the 
government of the United States, or in any department or office 
thereof." And by the sixth article, it is declared, "that this 
Constitution, and the laws of the United States, which shall be 
made in pursuance thereof, and the treaties made, or which shall 
be made, under the authority of the United States, shall be the 
supreme law of the land; and the judges in every State shall be 
bound thereby, any thing in the Constitution or law of any State 
to the contrary notwithstanding." It appears from these articles, 
that there is no need of any intervention of the State 
governments, between the Congress and the people, to execute any 
one power vested in the general government, and that the 
Constitution and laws of every State are nullified and declared 
void, so far as they are or shall be inconsistent with this 
Constitution, or the laws made in pursuance of it, or with 
treaties made under the authority of the United States. The 
government, then, so far as it extends, is a complete one, and 
not a confederation.  It is as much one complete government as 
that of New York or Massachusetts; has as absolute and perfect 
powers to make and execute all laws, to appoint officers, 
institute courts, declare offenses, and annex penalties, with 
respect to every object to which it extends, as any other in the 
world.  So far, therefore, as its powers reach, all ideas of 
confederation are given up and lost.  It is true this government 
is limited to certain objects, or to speak more properly, some 
small degree of power is still left to the States; but a little 
attention to the powers vested in the general government, will 
convince every candid man, that if it is capable of being 
executed, all that is reserved for the individual States must 
very soon be annihilated, except so far as they are barely 
necessary to the organization of the general government.  The 
powers of the general legislature extend to every case that is of 
the least importance-there is nothing valuable to human nature, 
nothing dear to freemen, but what is within its power.  It has 
the authority to make laws which will affect the lives, the 
liberty, and property of every man in the United States; nor can 
the Constitution or laws of any State, in any way prevent or 
impede the full and complete execution of every power given.  The 
legislative power is competent to lay taxes, duties, imposts, and 
excises;-there is no limitation to this power, unless it be said 
that the clause which directs the use to which those taxes and 
duties shall be applied, may be said to be a limitation.  But 
this is no restriction of the power at all, for by this clause 
they are to be applied to pay the debts and provide for the 
common defense and general welfare of the United States; but the 
legislature have authority to contract debts at their discretion; 
they are the sole judges of what is necessary to provide for the 
common defense, and they only are to determine what is for the 
general welfare.  This power, therefore, is neither more nor less 
than a power to lay and collect taxes, imposts, and excises, at 
their pleasure; not only the power to lay taxes unlimited as to 
the amount they may require, but it is perfect and absolute to 
raise ;hem in any mode they please.  No State legislature, or any 
power in the State governments, have any more to do in carrying 
this into effect than the authority of one State has to do with 
that of another.  In the business, therefore, of laying and 
collecting taxes, the idea of confederation is totally lost, and 
that of one entire republic is embraced.  It is proper here to 
remark, that the authority to lay and collect taxes is the most 
important of any power that can be granted; it connects with it 
almost all other powers, or at least will in process of time draw 
all others after it; it is the great mean of protection, 
security, and defense, in a good government, and the great engine 
of oppression and tyranny in a bad one.  This cannot fail of 
being the case, if we consider the contracted limits which are 
set by this Constitution, to the State governments, on this 
article of raising money.  No State can emit paper money, lay any 
duties or imposts, on imports, or exports, but by consent of the 
Congress; and then the net produce shall be for the benefit of 
the United States. The only means, therefore, left for any State 
to support its government and discharge its debts, is by direct 
taxation; and the United States have also power to lay and 
collect taxes, in any way they please.  Everyone who has thought 
on the subject, must be convinced that but small sums of money 
can he collected in any country, by direct tax; when the federal 
government begins to exercise the right of taxation in all its 
parts, the legislatures of the several states will find it 
impossible to raise monies to support their governments.  Without 
money they cannot be supported, and they must dwindle away, and, 
as before observed, their powers be absorbed in that of the 
general government. 
     It might be here shown, that the power in the federal 
legislature, to raise and support armies at pleasure, as well in 
peace as in war, and their control over the militia, tend not 
only to a consolidation of the government, but the destruction of 
liberty.  I shall not, however, dwell upon these, as a few 
observations upon the judicial power of this government, in 
addition to the preceding, will fully evince the truth of the 
position. 
     The judicial power of the United States is to be vested in a 
supreme court, and in such inferior courts as Congress may, from 
time to time, ordain and establish.  The powers of these courts 
are very extensive; their jurisdiction comprehends all civil 
causes, except such as arise between citizens of the same State; 
and it extends to all cases in law and equity arising under the 
Constitution.  One inferior court must be established, I presume, 
in each State, at least, with the necessary executive officers 
appendant thereto.  It is easy to see, that in the common course 
of things, these courts will eclipse the dignity, and take away 
from the respectability, of the State courts.  These courts will 
be, in themselves, totally independent of the States, deriving 
their authority from the United States, and receiving from them 
fixed salaries; and in the course of human events it is to be 
expected that they will swallow up all the powers of the courts 
in the respective States. 
     How far the clause in the eighth section of the first 
article may operate to do away with all idea of confederated 
States, and to effect an entire consolidation of the whole into 
one general government, it is impossible to say.  The powers 
given by this article are very general and comprehensive, and it 
may receive a construction to justify the passing almost any law.  
A power to make all laws, which shall be necessary and proper, 
for carrying into execution all powers vested by the Constitution 
in the government of the United States, or any department or 
officer thereof, is a power very comprehensive and definite, and 
may, for aught I know, be exercised in such manner as entirely to 
abolish the State legislatures.  Suppose the legislature of a 
State should pass a law to raise money to support their 
government and pay the State debt; may the Congress repeal this 
law, because it may prevent the collection of a tax which they 
may think proper and necessary to lay, to provide for the general 
welfare of the United States?  For all laws made, in pursuance of 
this Constitution, are the supreme law of the land, and the 
judges in every State shall be bound thereby, anything in the 
Constitution or laws of the different States to the contrary 
notwithstanding.  By such a law, the government of a particular 
State might be overturned at one stroke, and thereby be deprived 
of every means of its support. 
     It is not meant, by stating this case, to insinuate that the 
Constitution would warrant a law of this kind!  Or unnecessarily 
to alarm the fears of the people, by suggesting that the Federal 
legislature would be more likely to pass the limits assigned them 
by the Constitution, than that of an individual State, further 
than they are less responsible to the people.  But what is meant 
is, that the legislature of the United States are vested with the 
great and uncontrollable powers of laying and collecting taxes, 
duties, imposts, and excises; of regulating trade, raising and 
supporting armies, organizing, arming, and disciplining the 
militia, instituting courts, and other general powers; and are by 
this clause invested with the power of making all laws, proper 
and necessary, for carrying all these into execution; and they 
may so exercise this power as entirely to annihilate all the 
State governments, and reduce this country to one single 
government.  And if they may do it, it is pretty certain they 
will; for it will be found that the power retained by individual 
States, small as it is, will be a clog upon the wheels of the 
government of the United States; the latter, therefore, will be 
naturally inclined to remove it out of the way.  Besides, it is a 
truth confirmed by the unerring experience of ages, that every 
man, and every body of men, invested with power, are ever 
disposed to increase it, and to acquire a superiority over 
everything that stands in their way.  This disposition, which is 
implanted in human nature, will operate in the Federal 
legislature to lessen and ultimately to subvert the State 
authority, and having such advantages, will most certainly 
succeed, if the Federal government succeeds at all.  It must be 
very evident, then, that what this Constitution wants of being a 
complete consolidation of the several parts of the union into one 
complete government, possessed of perfect legislative, judicial, 
and executive powers, to all intents and purposes, it will 
necessarily acquire in its exercise in operation. 
                         BRUTUS