Antifederalist No. 33
FEDERAL TAXATION AND THE DOCTRINE OF IMPLIED POWERS
(PART II)
The Federalist writers apparently never responded to "BRUTUS."
The following "Brutus" article was extracted from his sixth
essay, The New-York Journal of December 27, 1787.
.... The general government is to be vested with authority
to levy and collect taxes, duties, and excises; the separate
states have also power to impose taxes, duties, and excises,
except that they cannot lay duties on exports and imports without
the consent of Congress. Here then the two governments have
concurrent jurisdiction; both may lay impositions of this kind.
But then the general government have superadded to this power,
authority to make all laws which shall be necessary and proper
for carrying the foregoing power into execution. Suppose then
that both governments should lay taxes, duties, and excises, and
it should fall so heavy on the people that they would be unable,
or be so burdensome that they would refuse to pay them both would
it not be necessary that the general legislature should suspend
the collection of the state tax? It certainly would. For, if the
people could not, or would not pay both, they must be discharged
from the tax to the state, or the tax to the general government
could not be collected. The conclusion therefore is inevitable,
that the respective state governments will not have the power to
raise one shilling in any way, but by the permission of the
Congress. I presume no one will pretend that the states can
exercise legislative authority, or administer justice among their
citizens for any length of time, without being able to raise a
sufficiency to pay those who administer their governments.
If this be true, and if the states can raise money only by
permission of the general government, it follows that the state
governments will be dependent on the will of the general
government for their existence.
What will render this power in Congress effectual and sure
in its operation is that the government will have complete
judicial and executive authority to carry all their laws into
effect, which will be paramount to the judicial and executive
authority of the individual states: in vain therefore will be all
interference of the legislatures, courts, or magistrates of any
of the states on the subject; for they will be subordinate to the
general government, and engaged by oath to support it, and will
be constitutionally bound to submit to their decisions.
The general legislature will be empowered to lay any tax
they choose, to annex any penalties they please to the breach of
their revenue laws; and to appoint as many officers as they may
think proper to collect the taxes. They will have authority to
farm the revenues and to vest the farmer general, with his
subalterns, with plenary powers to collect them, in any way which
to them may appear eligible, And the courts of law which they
will be authorized to institute, will have cognizance of every
case arising under the revenue laws, [and] the conduct of all the
officers employed in collecting them; and the officers of these
courts will execute their judgments. There is no way, therefore,
of avoiding the destruction of the state governments, whenever
the Congress please to do it, unless the people rise up, and,
with a strong hand, resist and prevent the execution of
constitutional laws. The fear of this will, it is presumed,
restrain the general government for some time, within proper
bounds; but it will not be many years before they will have a
revenue, and force, at their command, which will place them above
any apprehensions on that score.
How far the power to lay and collect duties and excises, may
operate to dissolve the state governments, and oppress the
people, it is impossible to say. It would assist us much in
forming a just opinion on this head, to consider the various
objects to which this kind of taxes extend, in European nations,
and the infinity of laws they have passed respecting them.
Perhaps, it leisure will permit, this may be essayed in some
future paper.
It was observed in my last number, that the power to lay and
collect duties and excises, would invest the Congress with
authority to impose a duty and excise on every necessary and
convenience of life. As the principal object of the government,
in laying a duty or excise, will be, to raise money, it is
obvious, that they will fix on such articles as are of the most
general use and consumption; because, unless great quantities of
the article, on which the duty is laid, is used, the revenue
cannot be considerable. We may therefore presume, that the
articles which will be the object of this species of taxes will
be either the real necessaries of life; or if not those, such as
from custom and habit are esteemed so. I will single out a few
of the productions of our own country, which may, and probably
will, be of the number.
Cider is an article that most probably will be one of those
on which an excise will be laid, because it is one, which this
country produces in great abundance, which is in very general
use, is consumed in great quantities, and which may be said not
to be a real necessary of life. An excise on this would raise a
large sum of money in the United States. How would the power, to
lay and collect an excise on cider, and to pass all laws proper
and necessary to carry it into execution, operate in its
exercise? It might be necessary, in order to collect the excise
on cider, to grant to one man, in each county, an exclusive right
of building and keeping cider-mills, and oblige him to give bonds
and security for payment of the excise; or, if this was not done,
it might be necessary to license the mills, which are to make
this liquor, and to take from them security, to account for the
excise, or, if otherwise, a great number of officers must be
employed, to take account of the cider made, and to collect the
duties on it.
Porter, ale, and all kinds of malt-liquors, are articles
that would probably be subject also to an excise. It would be
necessary, in order to collect such an excise, to regulate the
manufactory of these, that the quantity made might be
ascertained, or other wise security could not be had for the
payment of the excise, Every brewery must then be licensed, and
officers appointed, to take account of its product, and to secure
the payment of the duty, or excise, before it is sold. Many
other articles might be named, which would be objects of this
species of taxation, but I refrain from enumerating them. It
will probably be said, by those who advocate this system, that
the observations already made on this head, are calculated only
to inflame the minds of the people, with the apprehension of
dangers merely imaginary; that there is not the least reason to
apprehend the general legislature will exercise their power in
this manner. To this I would only say, that these kinds of taxes
exist in Great Britain, and are severely felt. The excise on
cider and perry, was imposed in that nation a few years ago, and
it is in the memory of everyone, who read the history of the
transaction, what great tumults it occasioned.
This power, exercised without limitation, will introduce
itself into every corner of the city, and country-it will wait
upon the ladies at their toilet, and will not leave them in any
of their domestic concerns; it will accompany them to the ball,
the play, and assembly; it will go with them when they visit, and
will, on all occasions, sit beside them in their carriages, nor
will it desert them even at church; it will enter the house of
every gentleman, watch over his cellar, wait upon his cook in the
kitchen, follow the servants into the parlor, preside over the
table, and note down all he eats or drinks; it will attend him to
his bedchamber, and watch him while he sleeps; it will take
cognizance of the professional man in his office, or his study;
it will watch the merchant in the counting-house, or in his
store; it will follow the mechanic to his shop, and in his work,
and will haunt him in his family, and in his bed; it will be a
constant companion of the industrious farmer in all his labor, it
will be with him in the house, and in the field, observe the toil
of his hands, and the sweat of his brow; it will penetrate into
the most obscure cottage; and finally, it will light upon the
head of every person in the United States. To all these
different classes of people, and in all these circumstances, in
which it will attend them, the language in which it will address
them, will be GIVE! GIVE! A power that has such latitude, which
reaches every person in the community in every conceivable
circumstance, and lays hold of every species of property they
possess, and which has no bounds set to it, but the discretion of
those who exercise it-I say, such a power must necessarily, from
its very nature, swallow up all the power of the state
governments. I shall add but one other observation on this head,
which is this: It appears to me a solecism, for two men, or
bodies of men, to have unlimited power respecting the same
object. It contradicts the ... maxim, which saith, "no man can
serve two masters," the one power or the other must prevail, or
else they will destroy each other, and neither of them effect
their purpose. It may be compared to two mechanic powers, acting
upon the same body in opposite directions, the consequence would
be, if the powers were equal, the body would remain in a state of
rest, or if the force of the one was superior to that of the
other, the stronger would prevail, and overcome the resistance of
the weaker. But it is said, by some of the advocates of this
system, that "the idea that Congress can levy taxes at pleasure
is false, and the suggestion wholly unsupported. The preamble to
the constitution is declaratory of the purposes of the [our]
union, and the assumption of any power not necessary to establish
justice, etc., provide for the common defense, etc., will be
unconstitutional. . . . Besides, in the very clause which gives
the power of levying duties and taxes, the purposes to which the
money shall be appropriated are specified, viz., to pay the debts
and provide for the common defense and general welfare."' I would
ask those, who reason thus, to define what ideas are included
under the terms, to provide for the common defense and general
welfare? Are these terms definite, and will they be understood
in the same manner, and to apply to the same cases by everyone?
No one will pretend they will. It will then be matter of
opinion, what tends to the general welfare; and the Congress will
be the only judges in the matter. To provide for the general
welfare, is an abstract proposition, which mankind differ in the
explanation of, as much as they do on any political or moral
proposition that can be proposed; the most opposite measures may
be pursued by different parties, and both may profess, that they
have in view the general welfare and both sides may be honest in
their professions, or both may have sinister views. Those who
advocate this new constitution declare, they are influenced by a
regard to the general welfare; those who oppose it, declare they
are moved by the same principle; and I have no doubt but a number
on both sides are honest in their professions; and yet nothing is
more certain than this, that to adopt this constitution, and not
to adopt it, cannot both of them be promotive of the general
welfare.
It is absurd to say, that the power of Congress is limited
by these general expressions "to provide for the common safety,
and general welfare," as it would be to say, that it would be
limited, had the constitution said they should have power to lay
taxes, etc. at will and pleasure. Were this authority given, it
might be said, that under it the legislature could not do
injustice, or pursue any measures, but such as were calculated to
promote the public good, and happiness. For every man, rulers as
well as others, are bound by the immutable laws of God and
reason, always to will what is right. It is certainly right and
fit, that the governors of every people should provide for the
common defense and general welfare; every government, therefore,
in the world, even the greatest despot, is limited in the
exercise of his power. But however just this reasoning may be,
it would be found, in practice, a most pitiful restriction. The
government would always say, their measures were designed and
calculated to promote the public good; and there being no judge
between them and the people, the rulers themselves must, and
would always, judge for themselves.
There are others of the favorers of this system, who admit,
that the power of the Congress under it, with respect to revenue,
will exist without limitation, and contend, that so it ought to
be.
It is said, the power "to raise armies; to build and equip
fleets; . . . [and] to provide for their support, . . . ought to
exist without limitation, because it is impossible to foresee or
define the extent and variety of national exigencies, or the
correspondent extent and variety of the means which may be
necessary to satisfy them."
This, it is said, "is one of those truths which, to a
correct and unprejudiced mind, carries its own evidence along
with it.... It rests upon axioms as simple as they are universal;
the means ought to be proportioned to the end; the persons, from
whose agency the attainment of any end is expected, ought to
possess the means by which it is to be attained."'
This same writer insinuates, that the opponents to the plan
promulgated by the convention, manifests a want of candor, in
objecting to the extent of the powers proposed to be vested in
this government; because he asserts, with an air of confidence,
that the powers ought to be unlimited as to the object to which
they extend; and that this position, if not self-evident, is at
least clearly demonstrated by the foregoing mode of reasoning.
But with submission to this author's better judgment, I humbly
conceive his reasoning will appear, upon examination, more
specious than solid. The means, says the gentleman, ought to be
proportioned to the end. Admit the proposition to be true, it is
then necessary to inquire, what is the end of the government of
the United States, in order to draw any just conclusions from it.
Is this end simply to preserve the general government, and to
provide for the common defense and general welfare of the union
only? Certainly not. For beside this, the state governments are
to be supported, and provision made for the managing such of
their internal concerns as are allotted to them. It is admitted
"that the circumstances of our country are such as to demand a
compound instead of a simple, a confederate instead of a sole,
government," that the objects of each ought to be pointed out,
and that each ought to possess ample authority to execute the
powers committed to them. The government then, being complex in
its nature, the end it has in view is so also; and it is as
necessary that the state governments should possess the means to
attain the end expected from them, as for the general government.
Neither the general government nor the state governments ought to
be vested with all the powers proper to be exercised for
promoting the ends of government. The powers are divided between
them-certain ends are to be attained by the one, and certain ends
by the other; and these, taken together, include all the ends of
good government. This being the case, the conclusion follows,
that each should be furnished with the means, to attain the ends,
to which they are designed.
To apply this reasoning to the case of revenue, the general
government is charged with the care of providing for the payment
of the debts of the United States, supporting the general
government, and providing for the defense of the union. To obtain
these ends, they should be furnished with means. But does it
thence follow, that they should command all the revenues of the
United States? Most certainly it does not. For if so, it will
follow, that no means will be left to attain other ends, as
necessary to the happiness of the country, as those committed to
their care. The individual states have debts to discharge; their
legislatures and executives are to be supported, and provision is
to be made for the administration of justice in the respective
states. For these objects the general government has no
authority to provide; nor is it proper it should. It is clear
then, that the states should have the command of such revenues,
as to answer the ends they have to obtain. To say, that "the
circumstances that endanger the safety of nations are infinite,""
and from hence to infer, that all the sources of revenue in the
states should be yielded to the general government, is not
conclusive reasoning: for the Congress are authorized only to
control in general concerns, and not regulate local and internal
ones. . . The peace and happiness of a community is as intimately
connected with the prudent direction of their domestic affairs,
and the due administration of justice among themselves, as with a
competent provision for their defense against foreign invaders,
and indeed more so.
Upon the whole, I conceive, that there cannot be a clearer
position than this, that the state governments ought to have an
uncontrollable power to raise a revenue, adequate to the
exigencies of their governments; and, I presume, no such power is
left them by this constitution.
BRUTUS