Section 8 of the first article of the American Constitution outlines the powers of the federal government to make laws in regard to taxes and duties and to provide for the general defence of the nation. The last clause of that section says that the federal government has the 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 Officer thereof.
Article 1, section 8
Article 6 of the Constitution states:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all 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, anything in the Constitution or laws of any State to the contrary notwithstanding.
Article 6, Clause 2
These two clauses are the subject of the 33rd Federalist paper. Hamilton portrays the opposition to these two clauses as hysterical through the use of inflated emotive language:
devouring jaws. The argument against the clauses is that they threaten the liberty of states.
Hamilton argues against that criticism quite effectively in this paper. First, he points out that the two clauses
… are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government. Hamilton is arguing that the clauses are merely stating what is implicit when drafting a federal constitution; that in order for a government to operate, the power to operate under its own constitution
… must be a power to pass all laws necessary and proper for the execution of that power.
Hamilton further divides the argument in two, by saying that what the anti-Federalist position might raise concern over is the specific laws that arise from the exercise of federal constitutional power. However, those specific laws are a result of the exercise of constitutional power, not the power itself. If the federal government were judged to be making laws that were not
necessary and proper for the purposes of exercising their legal power – a
tyrannical use of its powers – it would find its check in the democratic processes. Obvious abuses would be legislation which seeks to affect land tax, for example, which is the remit of state governments, according to the constitution, and as outlined in Federalist 32.
Hamilton effectively answers the question as to why the clauses are needed if they are only declamatory by suggesting that they would prevent future attempts to limit the necessary powers of the federal government. The criticisms he is answering in this paper, he argues, are a demonstration of this need.
Hamilton also addresses the issue of
supremacy. Federal laws, according to the constitution, are the supreme law of the land. Hamilton makes no apology for this:
A law, by the very meaning of the term, includes supremacy … It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government…
The idea of federal supremacy, however, is an idea which would be easy to attack politically. Hamilton points out that federal supremacy only exists in matters that the Constitution gives to the federal government. In other areas, like matters concerning land tax, federal supremacy does not exist. The reassuring conclusion that Hamilton draws from this is as follows:
… that the individual States would, under the proposed Constitution, 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.
5 September 2018