Antifederalist No. 32
FEDERAL TAXATION AND THE DOCTRINE OF IMPLIED POWERS
(PART I)
A powerful rebuttal of Hamilton, the logic of Brutus can be found
in a supreme Court decision of 1819, McCulloch v. Maryland. Taken
from "Brutus" fifth essay, The New-York Journal of December 13,
1787.
This constitution considers the people of the several states
as one body corporate, and is intended as an original compact; it
will therefore dissolve all contracts which may be inconsistent
with it. This not only results from its nature, but is expressly
declared in the 6th article of it. The design of the
constitution is expressed in the preamble, to be, "in order to
form a more perfect union, to establish justice, insure domestic
tranquility, provide for the common defense, promote the general
welfare, and secure the blessings of liberty to ourselves and
posterity." These are the ends this government is to accomplish,
and for which it is invested with certain powers; among these is
the power "to make all laws which are 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 officer thereof." It is a rule in
construing a law to consider the objects the legislature had in
view in passing it, and to give it such an explanation as to
promote their intention. The same rule will apply in explaining a
constitution. The great objects then are declared in this
preamble in general and indefinite terms to be to provide for the
common welfare, and an express power being vested in the
legislature to make all laws which shall be necessary and proper
for carrying into execution all the powers vested in the general
government. The inference is natural that the legislature will
have an authority to make all laws which they shall judge
necessary for the common safety, and to promote the general
welfare. This amounts to a power to make laws at discretion. No
terms can be found more indefinite than these, and it is obvious,
that the legislature alone must judge what laws are proper and
necessary for the purpose. It may be said, that this way of
explaining the constitution, is torturing and making it speak
what it never intended. This is far from my intention, and I
shall not even insist upon this implied power, but join issue
with those who say we are to collect the idea of the powers given
from the express words of the clauses granting them; and it will
not be difficult to show that the same authority is expressly
given which is supposed to be implied in the foregoing
paragraphs.
In the lst article, 8th section, it is declared, "that
Congress shall have power to lay and collect taxes, duties,
imposts, and excises, to pay the debts, and provide for the
common defense, and general welfare of the United States." In the
preamble, the intent of the constitution, among other things, is
declared to be to provide for the common defense, and promote the
general welfare, and in this clause the power is in express words
given to Congress "to provide for the common defense, and general
welfare." And in the last paragraph of the same section there is
an express authority to make all laws which shall be necessary
and proper for carrying into execution this power. It is
therefore evident, that the legislature under this constitution
may pass any law which they may think proper. It is true the 9th
section restrains their power with respect to certain subjects.
But these restrictions are very limited, some of them improper,
some unimportant, and others not easily understood, as I shall
hereafter show. It has been urged that the meaning I give to
this part of the constitution is not the true one, that the
intent of it is to confer on the legislature the power to lay and
collect taxes, etc., in order to provide for the common defense
and general welfare. To this I would reply, that the meaning and
intent of the constitution is to be collected from the words of
it, and I submit to the public, whether the construction I have
given it is not the most natural and easy. But admitting the
contrary opinion to prevail, I shall nevertheless, be able to
show, that the same powers are substantially vested in the
general government, by several other articles in the
constitution. It invests the legislature with authority to lay
and collect taxes, duties, imposts and excises, in order to
provide for the common defense, and promote the general welfare,
and to pass all laws which may be necessary and proper for
carrying this power into effect. To comprehend the extent of
this authority, it will be requisite to examine
1st. What is included in this power to lay and collect
taxes, duties, imposts and excises.
2nd. What is implied in the authority, to pass all laws
which shall be necessary and proper for carrying this power into
execution.
3rd. What limitation, if any, is set to the exercise of
this power by the constitution.
First. To detail the particulars comprehended in the
general terms, taxes, duties, imposts and excises, would require
a volume, instead of a single piece in a newspaper. Indeed it
would be a task far beyond my ability, and to which no one can be
competent, unless possessed of a mind capable of comprehending
every possible source of revenue; for they extend to every
possible way of raising money, whether by direct or indirect
taxation. Under this clause may be imposed a poll tax, a land
tax, a tax on houses and buildings, on windows and fireplaces, on
cattle and on all kinds of personal property. It extends to
duties on all kinds of goods to any amount, to tonnage and
poundage on vessels, to duties on written instruments,
newspapers, almanacks, and books. It comprehends an excise on
all kinds of liquors, spirits, wines, cider, beer, etc., and
indeed takes in duty or excise on every necessary or conveniency
of life, whether of foreign or home growth or manufactory. In
short, we can have no conception of any way in which a government
can raise money from the people, but what is included in one or
other of these general terms. We may say then that this clause
commits to the hands of the general legislature every conceivable
source of revenue within the United States, Not only are these
terms very comprehensive, and extend to a vast number of objects,
but the power to lay and collect has great latitude; it will lead
to the passing a vast number of laws, which may affect the
personal rights of the citizens of the states, expose their
property to fines and confiscation, and put their lives in
jeopardy. It opens a door to the appointment of a swarm of
revenue and excise collectors to prey upon the honest and
industrious part of the community, [and] eat up their substance.
. . .
Second. We will next inquire into what is implied in the
authority to pass all laws which shall be necessary and proper to
carry this power into execution.
It is, perhaps, utterly impossible fully to define this
power. The authority granted in the first clause can only be
understood in its full extent, by descending to all the
particular cases in which a revenue can be raised; the number and
variety of these cases are so endless, and as it were infinite,
that no man living has, as yet, been able to reckon them up. The
greatest geniuses in the world have been for ages employed in the
research, and when mankind had supposed that the subject was
exhausted they have been astonished with the refined improvements
that have been made in modern times ' and especially in the
English nation on the subject. If then the objects of this power
cannot be comprehended, how is it possible to understand the
extent of that power which can pass all laws which shall be
necessary and proper for carrying it into executions It is truly
incomprehensible. A case cannot be conceived of, which is not
included in this power. It is well known that the subject of
revenue is the most difficult and extensive in the science of
government. It requires the greatest talents of a statesman, and
the most numerous and exact provisions of the legislature. The
command of the revenues 'Of a state gives the command of every
thing in it. He that has the purse will have the sword, and they
that have both, have everything; so that the legislature having
every source from which money can be drawn under their direction,
with a right to make all laws necessary and proper for drawing
forth all the resource of the country, would have, in fact, all
power.
Were I to enter into the detail, it would be easy to show
how this power in its operation, would totally destroy all the
powers of the individual states. But this is not necessary for
those who will think for themselves, and it will be useless to
such as take things upon trust; nothing will awaken them to
reflection, until the iron hand of oppression compel them to it.
I shall only remark, that this power, given to the federal
legislature, directly annihilates all the powers of the state
legislatures. There cannot be a greater solecism in politics
than to talk of power in a government, without the command of any
revenue. It is as absurd as to talk of an animal without blood,
or the subsistence of one without food. Now the general
government having in their control every possible source of
revenue, and authority to pass any law they may deem necessary to
draw them forth, or to facilitate their collection, no source of
revenue is therefore left in the hands 'Of any state. Should any
state attempt to raise money by law, the general government may
repeal or arrest it in the execution, for all their laws will be
the supreme law of the land. If then any one can be weak enough
to believe that a government can exist without having the
authority to raise money to pay a door-keeper to their assembly,
he may believe that the state government can exist, should this
new constitution take place.
It is agreed by most of the advocates of this new system,
that the government which is proper for the United States should
be a confederated one; that the respective states ought to retain
a portion of their sovereignty, and that they should preserve not
only the forms of their legislatures, but also the power to
conduct certain internal concerns. How far the powers to be
retained by the states are to extend, is the question; we need
not spend much time on this subject, as it respects this
constitution, for a government without power to raise money is
one only in name. It is clear that the legislatures of the
respective states must be altogether dependent on the will of the
general legislature, for the means of supporting their
government. The legislatureof the United States will have a
right to exhaust every source of revenue in every state, and to
annul all laws of the states which may stand in the way of
effecting it; unless therefore we can suppose the state
governments can exist without money to support the officers who
execute them, we must conclude they will exist no longer than the
general legislatures choose they should. Indeed the idea of any
government existing, in any respect, as an independent one,
without any means of support in their own hands, is an absurdity.
If therefore, this constitution has in view, what many of its
framers and advocates say it has, to secure and guarantee to the
separate states the exercise of certain powers of government, it
certainly ought to have left in their hands some sources of
revenue. It should have marked the line in which the general
government should have raised money, and set bounds over which
they should not pass, leaving to the separate states other means
to raise supplies for the support of their governments, and to
discharge their respective debts. To this it is objected, that
the general government ought to have power competent to the
purposes of the union; they are to provide for the common
defense, to pay the debts of the United States, support foreign
ministers, and the civil establishment of the union, and to do
these they ought to have authority to raise money adequate to the
purpose. On this I observe, that the state governments have also
contracted debts; they require money to support their civil
officers; . . . if they give to the general government a power to
raise money in every way in which it can possibly be raised, with
. . . a control over the state legislatures as to prohibit them,
whenever the general legislature may think proper, from raising
any money, (the states will fail]. It is again objected that it
is very difficult, if not impossible, to draw the line of
distinction between the powers of the general and state
governments on this subject. The first, it is said, must have
the power to raise the money necessary for the purposes of the
union; if they are limited to certain objects the revenue may
fall short of a sufficiency for the public exigencies; they must
therefore have discretionary power. The line may be easily and
accurately drawn between the powers of the two governments on
this head. The distinction between external and internal taxes,
is not a novel one in this country. It is a plain one, and
easily understood. The first includes impost duties on all
imported goods; this species of taxes it is proper should be laid
by the general government; many reasons might be urged to show
that no danger is to be apprehended from their exercise of it.
They may be collected in few places, and from few hands with
certainty and expedition. But few officers are necessary to be
employed in collecting them, and there is no danger of oppression
in laying them, because if they are laid higher than trade will
bear, the merchants will cease importing, or smuggle their goods.
We have therefore sufficient security, arising from the nature of
the thing, against burdensome, and intolerable impositions from
this kind of tax. The case is far otherwise with regard to
direct taxes; these include poll taxes, land taxes, excises,
duties on written instruments, on everything we eat, drink, or
wear; they take hold of every species of property, and come home
to every man's house and pocket. These are often so oppressive,
as to grind the face of the poor, and render the lives of the
common people a burden to them. The great and only security the
people can have against oppression from this kind of taxes, must
rest in their representatives. If they are sufficiently numerous
to be well informed of the circumstances, . . . and have a proper
regard for the people, they will be secure. The general
legislature, as I have shown in a former paper, will not be thus
qualified,' and therefore, on this account, ought not to exercise
the power of direct taxation. If the power of laying imposts
will not be sufficient, some other specific mode of raising a
revenue should have been assigned the general government; many
may be suggested in which their power may be accurately defined
and limited, and it would be much better to give them authority
to lay and collect a duty on exports, not to exceed a certain
rate per cent, than to have surrendered every kind of resource
that the country has, to the complete abolition of the state
governments, and which will introduce such an infinite number of
laws and ordinances, fines and penalties, courts, and judges,
collectors, and excisemen, that when a man can number them, he
may enumerate the stars of Heaven.
BRUTUS