THE FEDERALIST PAPERS
Concerning the General Power of
Taxation From the New York Packet.
Friday, December 28, 1787
HAMILTON
TABLE OF CONTENTS
To the People of the State of New York:
FEDERALIST No. 30
To the People of the State of New York:
IT HAS been already observed that the federal
government ought to possess the power of providing for the support of the
national forces; in which proposition was intended to be included the expense
of raising troops, of building and equipping fleets, and all other expenses in
any wise connected with military arrangements and operations. But these are
not the only objects to which the jurisdiction of the Union, in respect to
revenue, must necessarily be empowered to extend. It must embrace a provision
for the support of the national civil list; for the payment of the national
debts contracted, or that may be contracted; and, in general, for all those
matters which will call for disbursements out of the national treasury. The
conclusion is, that there must be interwoven, in the frame of the government,
a general power of taxation, in one shape or another.
2 Money is, with propriety, considered as the vital
principle of the body politic; as that which sustains its life and motion, and
enables it to perform its most essential functions. A complete power,
therefore, to procure a regular and adequate supply of it, as far as the
resources of the community will permit, may be regarded as an indispensable
ingredient in every constitution. From a deficiency in this particular, one of
two evils must ensue; either the people must be subjected to continual
plunder, as a substitute for a more eligible mode of supplying the public
wants, or the government must sink into a fatal atrophy, and, in a short
course of time, perish.
3 In the Ottoman or Turkish empire, the sovereign,
though in other respects absolute master of the lives and fortunes of his
subjects, has no right to impose a new tax. The consequence is that he permits
the bashaws or governors of provinces to pillage the people without mercy;
and, in turn, squeezes out of them the sums of which he stands in need, to
satisfy his own exigencies and those of the state. In America, from a like
cause, the government of the Union has gradually dwindled into a state of
decay, approaching nearly to annihilation. Who can doubt, that the happiness
of the people in both countries would be promoted by competent authorities in
the proper hands, to provide the revenues which the necessities of the public
might require?
4 The present Confederation, feeble as it is intended
to repose in the United States, an unlimited power of providing for the
pecuniary wants of the Union. But proceeding upon an erroneous principle, it
has been done in such a manner as entirely to have frustrated the intention.
Congress, by the articles which compose that compact (as has already been
stated), are authorized to ascertain and call for any sums of money necessary,
in their judgment, to the service of the United States; and their
requisitions, if conformable to the rule of apportionment, are in every
constitutional sense obligatory upon the States. These have no right to
question the propriety of the demand; no discretion beyond that of devising
the ways and means of furnishing the sums demanded. But though this be
strictly and truly the case; though the assumption of such a right would be an
infringement of the articles of Union; though it may seldom or never have been
avowedly claimed, yet in practice it has been constantly exercised, and would
continue to be so, as long as the revenues of the Confederacy should remain
dependent on the intermediate agency of its members. What the consequences of
this system have been, is within the knowledge of every man the least
conversant in our public affairs, and has been amply unfolded in different
parts of these inquiries. It is this which has chiefly contributed to reduce
us to a situation, which affords ample cause both of mortification to
ourselves, and of triumph to our enemies.
5 What remedy can there be for this situation, but in a
change of the system which has produced it in a change of the fallacious and
delusive system of quotas and requisitions? What substitute can there be
imagined for this ignis fatuus in finance, but that of permitting the national
government to raise its own revenues by the ordinary methods of taxation
authorized in every well-ordered constitution of civil government? Ingenious
men may declaim with plausibility on any subject; but no human ingenuity can
point out any other expedient to rescue us from the inconveniences and
embarrassments naturally resulting from defective supplies of the public
treasury.
6 The more intelligent adversaries of the new
Constitution admit the force of this reasoning; but they qualify their
admission by a distinction between what they call INTERNAL and EXTERNAL
taxation. The former they would reserve to the State governments; the latter,
which they explain into commercial imposts, or rather duties on imported
articles, they declare themselves willing to concede to the federal head. This
distinction, however, would violate the maxim of good sense and sound policy,
which dictates that every POWER ought to be in proportion to its OBJECT; and
would still leave the general government in a kind of tutelage to the State
governments, inconsistent with every idea of vigor or efficiency. Who can
pretend that commercial imposts are, or would be, alone equal to the present
and future exigencies of the Union? Taking into the account the existing debt,
foreign and domestic, upon any plan of extinguishment which a man moderately
impressed with the importance of public justice and public credit could
approve, in addition to the establishments which all parties will acknowledge
to be necessary, we could not reasonably flatter ourselves, that this resource
alone, upon the most improved scale, would even suffice for its present
necessities. Its future necessities admit not of calculation or limitation;
and upon the principle, more than once adverted to, the power of making
provision for them as they arise ought to be equally unconfined. I believe it
may be regarded as a position warranted by the history of mankind, that, IN
THE USUAL PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF
ITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES.
7 To say that deficiencies may be provided for by
requisitions upon the States, is on the one hand to acknowledge that this
system cannot be depended upon, and on the other hand to depend upon it for
every thing beyond a certain limit. Those who have carefully attended to its
vices and deformities as they have been exhibited by experience or delineated
in the course of these papers, must feel invincible repugnancy to trusting the
national interests in any degree to its operation. Its inevitable tendency,
whenever it is brought into activity, must be to enfeeble the Union, and sow
the seeds of discord and contention between the federal head and its members,
and between the members themselves. Can it be expected that the deficiencies
would be better supplied in this mode than the total wants of the Union have
heretofore been supplied in the same mode? It ought to be recollected that if
less will be required from the States, they will have proportionably less
means to answer the demand. If the opinions of those who contend for the
distinction which has been mentioned were to be received as evidence of truth,
one would be led to conclude that there was some known point in the economy of
national affairs at which it would be safe to stop and to say: Thus far the
ends of public happiness will be promoted by supplying the wants of
government, and all beyond this is unworthy of our care or anxiety. How is it
possible that a government half supplied and always necessitous, can fulfill
the purposes of its institution, can provide for the security, advance the
prosperity, or support the reputation of the commonwealth? How can it ever
possess either energy or stability, dignity or credit, confidence at home or
respectability abroad? How can its administration be any thing else than a
succession of expedients temporizing, impotent, disgraceful? How will it be
able to avoid a frequent sacrifice of its engagements to immediate necessity?
How can it undertake or execute any liberal or enlarged plans of public good?
8 Let us attend to what would be the effects of this
situation in the very first war in which we should happen to be engaged. We
will presume, for argument's sake, that the revenue arising from the impost
duties answers the purposes of a provision for the public debt and of a peace
establishment for the Union. Thus circumstanced, a war breaks out. What would
be the probable conduct of the government in such an emergency? Taught by
experience that proper dependence could not be placed on the success of
requisitions, unable by its own authority to lay hold of fresh resources, and
urged by considerations of national danger, would it not be driven to the
expedient of diverting the funds already appropriated from their proper
objects to the defense of the State? It is not easy to see how a step of this
kind could be avoided; and if it should be taken, it is evident that it would
prove the destruction of public credit at the very moment that it was becoming
essential to the public safety. To imagine that at such a crisis credit might
be dispensed with, would be the extreme of infatuation. In the modern system
of war, nations the most wealthy are obliged to have recourse to large loans.
A country so little opulent as ours must feel this necessity in a much
stronger degree. But who would lend to a government that prefaced its
overtures for borrowing by an act which demonstrated that no reliance could be
placed on the steadiness of its measures for paying? The loans it might be
able to procure would be as limited in their extent as burdensome in their
conditions. They would be made upon the same principles that usurers commonly
lend to bankrupt and fraudulent debtors, with a sparing hand and at enormous
premiums.
9 It may perhaps be imagined that, from the scantiness
of the resources of the country, the necessity of diverting the established
funds in the case supposed would exist, though the national government should
possess an unrestrained power of taxation. But two considerations will serve
to quiet all apprehension on this head: one is, that we are sure the resources
of the community, in their full extent, will be brought into activity for the
benefit of the Union; the other is, that whatever deficiences there may be,
can without difficulty be supplied by loans.
10 The power of creating new funds upon new objects of
taxation, by its own authority, would enable the national government to borrow
as far as its necessities might require. Foreigners, as well as the citizens
of America, could then reasonably repose confidence in its engagements; but to
depend upon a government that must itself depend upon thirteen other
governments for the means of fulfilling its contracts, when once its situation
is clearly understood, would require a degree of credulity not often to be met
with in the pecuniary transactions of mankind, and little reconcilable with
the usual sharp-sightedness of avarice.
11 Reflections of this kind may have trifling weight
with men who hope to see realized in America the halcyon scenes of the poetic
or fabulous age; but to those who believe we are likely to experience a common
portion of the vicissitudes and calamities which have fallen to the lot of
other nations, they must appear entitled to serious attention. Such men must
behold the actual situation of their country with painful solicitude, and
deprecate the evils which ambition or revenge might, with too much facility,
inflict upon it.
PUBLIUS
FEDERALIST No. 31
The Same Subject Continued (Concerning
the General Power of Taxation) From the New York Packet.
Tuesday, January 1, 1788.
HAMILTON
To the People of the State of New York:
IN DISQUISITIONS of every kind, there are certain
primary truths, or first principles, upon which all subsequent reasonings must
depend. These contain an internal evidence which, antecedent to all reflection
or combination, commands the assent of the mind. Where it produces not this
effect, it must proceed either from some defect or disorder in the organs of
perception, or from the influence of some strong interest, or passion, or
prejudice. Of this nature are the maxims in geometry, that "the whole is
greater than its part; things equal to the same are equal to one another; two
straight lines cannot enclose a space; and all right angles are equal to each
other." Of the same nature are these other maxims in ethics and politics,
that there cannot be an effect without a cause; that the means ought to be
proportioned to the end; that every power ought to be commensurate with its
object; that there ought to be no limitation of a power destined to effect a
purpose which is itself incapable of limitation. And there are other truths in
the two latter sciences which, if they cannot pretend to rank in the class of
axioms, are yet such direct inferences from them, and so obvious in
themselves, and so agreeable to the natural and unsophisticated dictates of
common-sense, that they challenge the assent of a sound and unbiased mind,
with a degree of force and conviction almost equally irresistible.
2 The objects of geometrical inquiry are so entirely
abstracted from those pursuits which stir up and put in motion the unruly
passions of the human heart, that mankind, without difficulty, adopt not only
the more simple theorems of the science, but even those abstruse paradoxes
which, however they may appear susceptible of demonstration, are at variance
with the natural conceptions which the mind, without the aid of philosophy,
would be led to entertain upon the subject. The INFINITE DIVISIBILITY of
matter, or, in other words, the INFINITE divisibility of a FINITE thing,
extending even to the minutest atom, is a point agreed among geometricians,
though not less incomprehensible to common-sense than any of those mysteries
in religion, against which the batteries of infidelity have been so
industriously leveled.
3 But in the sciences of morals and politics, men are
found far less tractable. To a certain degree, it is right and useful that
this should be the case. Caution and investigation are a necessary armor
against error and imposition. But this untractableness may be carried too far,
and may degenerate into obstinacy, perverseness, or disingenuity. Though it
cannot be pretended that the principles of moral and political knowledge have,
in general, the same degree of certainty with those of the mathematics, yet
they have much better claims in this respect than, to judge from the conduct
of men in particular situations, we should be disposed to allow them. The
obscurity is much oftener in the passions and prejudices of the reasoner than
in the subject. Men, upon too many occasions, do not give their own
understandings fair play; but, yielding to some untoward bias, they entangle
themselves in words and confound themselves in subtleties.
4 How else could it happen (if we admit the objectors
to be sincere in their opposition), that positions so clear as those which
manifest the necessity of a general power of taxation in the government of the
Union, should have to encounter any adversaries among men of discernment?
Though these positions have been elsewhere fully stated, they will perhaps not
be improperly recapitulated in this place, as introductory to an examination
of what may have been offered by way of objection to them. They are in
substance as follows:
5 A government ought to contain in itself every power
requisite to the full accomplishment of the objects committed to its care, and
to the complete execution of the trusts for which it is responsible, free from
every other control but a regard to the public good and to the sense of the
people.
6 As the duties of superintending the national defense
and of securing the public peace against foreign or domestic violence involve
a provision for casualties and dangers to which no possible limits can be
assigned, the power of making that provision ought to know no other bounds
than the exigencies of the nation and the resources of the community.
7 As revenue is the essential engine by which the means
of answering the national exigencies must be procured, the power of procuring
that article in its full extent must necessarily be comprehended in that of
providing for those exigencies.
8 As theory and practice conspire to prove that the
power of procuring revenue is unavailing when exercised over the States in
their collective capacities, the federal government must of necessity be
invested with an unqualified power of taxation in the ordinary modes.
9 Did not experience evince the contrary, it would be
natural to conclude that the propriety of a general power of taxation in the
national government might safely be permitted to rest on the evidence of these
propositions, unassisted by any additional arguments or illustrations. But we
find, in fact, that the antagonists of the proposed Constitution, so far from
acquiescing in their justness or truth, seem to make their principal and most
zealous effort against this part of the plan. It may therefore be satisfactory
to analyze the arguments with which they combat it.
10 Those of them which have been most labored with that
view, seem in substance to amount to this: "It is not true, because the
exigencies of the Union may not be susceptible of limitation, that its power
of laying taxes ought to be unconfined. Revenue is as requisite to the
purposes of the local administrations as to those of the Union; and the former
are at least of equal importance with the latter to the happiness of the
people. It is, therefore, as necessary that the State governments should be
able to command the means of supplying their wants, as that the national
government should possess the like faculty in respect to the wants of the
Union. But an indefinite power of taxation in the LATTER might, and probably
would in time, deprive the FORMER of the means of providing for their own
necessities; and would subject them entirely to the mercy of the national
legislature. As the laws of the Union are to become the supreme law of the
land, as it is to have power to pass all laws that may be NECESSARY for
carrying into execution the authorities with which it is proposed to vest it,
the national government might at any time abolish the taxes imposed for State
objects upon the pretense of an interference with its own. It might allege a
necessity of doing this in order to give efficacy to the national revenues.
And thus all the resources of taxation might by degrees become the subjects of
federal monopoly, to the entire exclusion and destruction of the State
governments."
11 This mode of reasoning appears sometimes to turn upon
the supposition of usurpation in the national government; at other times it
seems to be designed only as a deduction from the constitutional operation of
its intended powers. It is only in the latter light that it can be admitted to
have any pretensions to fairness. The moment we launch into conjectures about
the usurpations of the federal government, we get into an unfathomable abyss,
and fairly put ourselves out of the reach of all reasoning. Imagination may
range at pleasure till it gets bewildered amidst the labyrinths of an
enchanted castle, and knows not on which side to turn to extricate itself from
the perplexities into which it has so rashly adventured. Whatever may be the
limits or modifications of the powers of the Union, it is easy to imagine an
endless train of possible dangers; and by indulging an excess of jealousy and
timidity, we may bring ourselves to a state of absolute scepticism and
irresolution. I repeat here what I have observed in substance in another
place, that all observations founded upon the danger of usurpation ought to be
referred to the composition and structure of the government, not to the nature
or extent of its powers. The State governments, by their original
constitutions, are invested with complete sovereignty. In what does our
security consist against usurpation from that quarter? Doubtless in the manner
of their formation, and in a due dependence of those who are to administer
them upon the people. If the proposed construction of the federal government
be found, upon an impartial examination of it, to be such as to afford, to a
proper extent, the same species of security, all apprehensions on the score of
usurpation ought to be discarded.
12 It should not be forgotten that a disposition in the
State governments to encroach upon the rights of the Union is quite as
probable as a disposition in the Union to encroach upon the rights of the
State governments. What side would be likely to prevail in such a conflict,
must depend on the means which the contending parties could employ toward
insuring success. As in republics strength is always on the side of the
people, and as there are weighty reasons to induce a belief that the State
governments will commonly possess most influence over them, the natural
conclusion is that such contests will be most apt to end to the disadvantage
of the Union; and that there is greater probability of encroachments by the
members upon the federal head, than by the federal head upon the members. But
it is evident that all conjectures of this kind must be extremely vague and
fallible: and that it is by far the safest course to lay them altogether
aside, and to confine our attention wholly to the nature and extent of the
powers as they are delineated in the Constitution. Every thing beyond this
must be left to the prudence and firmness of the people; who, as they will
hold the scales in their own hands, it is to be hoped, will always take care
to preserve the constitutional equilibrium between the general and the State
governments. Upon this ground, which is evidently the true one, it will not be
difficult to obviate the objections which have been made to an indefinite
power of taxation in the United States.
PUBLIUS
FEDERALIST No. 32
The Same Subject Continued (Concerning
the General Power of Taxation) From the Independent Journal. Wednesday,
January 2, 1788.
HAMILTON
To the People of the State of New York:
ALTHOUGH I am of opinion that there would be no real
danger of the consequences which seem to be apprehended to the State
governments from a power in the Union to control them in the levies of money,
because I am persuaded that the sense of the people, the extreme hazard of
provoking the resentments of the State governments, and a conviction of the
utility and necessity of local administrations for local purposes, would be a
complete barrier against the oppressive use of such a power; yet I am willing
here to allow, in its full extent, the justness of the reasoning which
requires that the individual States should possess an independent and
uncontrollable authority to raise their own revenues for the supply of their
own wants. And making this concession, I affirm that (with the sole exception
of duties on imports and exports) they would, under the plan of the
convention, retain that authority in the most absolute and unqualified sense;
and that an attempt on the part of the national government to abridge them in
the exercise of it, would be a violent assumption of power, unwarranted by any
article or clause of its Constitution.
2 An entire consolidation of the States into one
complete national sovereignty would imply an entire subordination of the
parts; and whatever powers might remain in them, would be altogether dependent
on the general will. But as the plan of the convention aims only at a partial
union or consolidation, the State governments would clearly retain all the
rights of sovereignty which they before had, and which were not, by that act,
EXCLUSIVELY delegated to the United States. This exclusive delegation, or
rather this alienation, of State sovereignty, would only exist in three cases:
where the Constitution in express terms granted an exclusive authority to the
Union; where it granted in one instance an authority to the Union, and in
another prohibited the States from exercising the like authority; and where it
granted an authority to the Union, to which a similar authority in the States
would be absolutely and totally CONTRADICTORY and REPUGNANT. I use these terms
to distinguish this last case from another which might appear to resemble it,
but which would, in fact, be essentially different; I mean where the exercise
of a concurrent jurisdiction might be productive of occasional interferences
in the POLICY of any branch of administration, but would not imply any direct
contradiction or repugnancy in point of constitutional authority. These three
cases of exclusive jurisdiction in the federal government may be exemplified
by the following instances: The last clause but one in the eighth section of
the first article provides expressly that Congress shall exercise
"EXCLUSIVE LEGISLATION" over the district to be appropriated as the
seat of government. This answers to the first case. The first clause of the
same section empowers Congress "to lay and collect taxes, duties, imposts
and excises"; and the second clause of the tenth section of the same
article declares that, "NO STATE SHALL, without the consent of Congress,
lay any imposts or duties on imports or exports, except for the purpose of
executing its inspection laws." Hence would result an exclusive power in
the Union to lay duties on imports and exports, with the particular exception
mentioned; but this power is abridged by another clause, which declares that
no tax or duty shall be laid on articles exported from any State; in
consequence of which qualification, it now only extends to the DUTIES ON
IMPORTS. This answers to the second case. The third will be found in that
clause which declares that Congress shall have power "to establish an
UNIFORM RULE of naturalization throughout the United States." This must
necessarily be exclusive; because if each State had power to prescribe a
DISTINCT RULE, there could not be a UNIFORM RULE.
3 A case which may perhaps be thought to resemble the
latter, but which is in fact widely different, affects the question
immediately under consideration. I mean the power of imposing taxes on all
articles other than exports and imports. This, I contend, is manifestly a
concurrent and coequal authority in the United States and in the individual
States. There is plainly no expression in the granting clause which makes that
power EXCLUSIVE in the Union. There is no independent clause or sentence which
prohibits the States from exercising it. So far is this from being the case,
that a plain and conclusive argument to the contrary is to be deduced from the
restraint laid upon the States in relation to duties on imports and exports.
This restriction implies an admission that, if it were not inserted, the
States would possess the power it excludes; and it implies a further
admission, that as to all other taxes, the authority of the States remains
undiminished. In any other view it would be both unnecessary and dangerous; it
would be unnecessary, because if the grant to the Union of the power of laying
such duties implied the exclusion of the States, or even their subordination
in this particular, there could be no need of such a restriction; it would be
dangerous, because the introduction of it leads directly to the conclusion
which has been mentioned, and which, if the reasoning of the objectors be
just, could not have been intended; I mean that the States, in all cases to
which the restriction did not apply, would have a concurrent power of taxation
with the Union. The restriction in question amounts to what lawyers call a
NEGATIVE PREGNANT that is, a NEGATION of one thing, and an AFFIRMANCE of
another; a negation of the authority of the States to impose taxes on imports
and exports, and an affirmance of their authority to impose them on all other
articles. It would be mere sophistry to argue that it was meant to exclude
them ABSOLUTELY from the imposition of taxes of the former kind, and to leave
them at liberty to lay others SUBJECT TO THE CONTROL of the national
legislature. The restraining or prohibitory clause only says, that they shall
not, WITHOUT THE CONSENT OF CONGRESS, lay such duties; and if we are to
understand this in the sense last mentioned, the Constitution would then be
made to introduce a formal provision for the sake of a very absurd conclusion;
which is, that the States, WITH THE CONSENT of the national legislature, might
tax imports and exports; and that they might tax every other article, UNLESS
CONTROLLED by the same body. If this was the intention, why not leave it, in
the first instance, to what is alleged to be the natural operation of the
original clause, conferring a general power of taxation upon the Union? It is
evident that this could not have been the intention, and that it will not bear
a construction of the kind.
4 As to a supposition of repugnancy between the power
of taxation in the States and in the Union, it cannot be supported in that
sense which would be requisite to work an exclusion of the States. It is,
indeed, possible that a tax might be laid on a particular article by a State
which might render it INEXPEDIENT that thus a further tax should be laid on
the same article by the Union; but it would not imply a constitutional
inability to impose a further tax. The quantity of the imposition, the
expediency or inexpediency of an increase on either side, would be mutually
questions of prudence; but there would be involved no direct contradiction of
power. The particular policy of the national and of the State systems of
finance might now and then not exactly coincide, and might require reciprocal
forbearances. It is not, however a mere possibility of inconvenience in the
exercise of powers, but an immediate constitutional repugnancy that can by
implication alienate and extinguish a pre-existing right of sovereignty.
5 The necessity of a concurrent jurisdiction in certain
cases results from the division of the sovereign power; and the rule that all
authorities, of which the States are not explicitly divested in favor of the
Union, remain with them in full vigor, is not a theoretical consequence of
that division, but is clearly admitted by the whole tenor of the instrument
which contains the articles of the proposed Constitution. We there find that,
notwithstanding the affirmative grants of general authorities, there has been
the most pointed care in those cases where it was deemed improper that the
like authorities should reside in the States, to insert negative clauses
prohibiting the exercise of them by the States. The tenth section of the first
article consists altogether of such provisions. This circumstance is a clear
indication of the sense of the convention, and furnishes a rule of
interpretation out of the body of the act, which justifies the position I have
advanced and refutes every hypothesis to the contrary.
PUBLIUS
FEDERALIST No. 33
The Same Subject Continued (Concerning
the General Power of Taxation) From the Independent Journal. Wednesday,
January 2, 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."
2 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.
3 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 propermeans of
executing such a power, but NECESSARY and PROPER laws?
4 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.
5 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 legitimatb 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.
6 But it may be again asked, Who is to judge of the
NECESSITY and PROPRIETY of the laws to be passed for executing the powers of
the Union? I answer, first, that this question arises as well and as fully
upon the simple grant of those powers as upon the declaratory clause; and I
answer, in the second place, that the national government, like every other,
must judge, in the first instance, of the proper exercise of its powers, and
its constituents in the last. 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 propriety of a law, in a
constitutional light, must always be determined by the nature of the powers
upon which it is founded. Suppose, by some forced constructions of its
authority (which, indeed, cannot easily be imagined), the Federal legislature
should attempt to vary the law of descent in any State, would it not be
evident that, in making such an attempt, it had exceeded its jurisdiction, and
infringed upon that of the State? Suppose, again, that upon the pretense of an
interference with its revenues, it should undertake to abrogate a landtax
imposed by the authority of a State; would it not be equally evident that this
was an invasion of that concurrent jurisdiction in respect to this species of
tax, which its Constitution plainly supposes to exist in the State
governments? If there ever should be a doubt on this head, the credit of it
will be entirely due to those reasoners who, in the imprudent zeal of their
animosity to the plan of the convention, have labored to envelop it in a cloud
calculated to obscure the plainest and simplest truths.
7 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 goverment, which is only another word for POLITICAL POWER AND SUPREMACY.
But it will not follow from this doctrine that acts of the large 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 to be understood,
though it had not been expressed.
8 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 for abrogating or preventing the collection
of a tax laid by the authority of the State, (unless upon imports and
exports), would not be the supreme law of the land, but a usurpation of power
not granted by the Constitution. As far as an improper accumulation of taxes
on the same object might tend to render the collection difficult or
precarious, this would be a mutual inconvenience, not arising from a
superiority or defect of power on either side, but from an injudicious
exercise of power by one or the other, in a manner equally disadvantageous to
both. It is to be hoped and presumed, however, that mutual interest would
dictate a concert in this respect which would avoid any material
inconvenience. The inference from the whole is, 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. It will be shown in the next paper that this CONCURRENT JURISDICTION
in the article of taxation was the only admissible substitute for an entire
subordination, in respect to this branch of power, of the State authority to
that of the Union.
PUBLIUS
FEDERALIST No. 34
The Same Subject Continued (Concerning
the General Power of Taxation) From the Independent Journal. Saturday, January
5, 1788.
HAMILTON
To the People of the State of New York:
I FLATTER myself it has been clearly shown in my last
number that the particular States, under the proposed Constitution, would have
COEQUAL authority with the Union in the article of revenue, except as to
duties on imports. As this leaves open to the States far the greatest part of
the resources of the community, there can be no color for the assertion that
they would not possess means as abundant as could be desired for the supply of
their own wants, independent of all external control. That the field is
sufficiently wide will more fully appear when we come to advert to the
inconsiderable share of the public expenses for which it will fall to the lot
of the State governments to provide.
2 To argue upon abstract principles that this
co-ordinate authority cannot exist, is to set up supposition and theory
against fact and reality. However proper such reasonings might be to show that
a thing OUGHT NOT TO EXIST, they are wholly to be rejected when they are made
use of to prove that it does not exist contrary to the evidence of the fact
itself. It is well known that in the Roman republic the legislative authority,
in the last resort, resided for ages in two different political bodies not as
branches of the same legislature, but as distinct and independent
legislatures, in each of which an opposite interest prevailed: in one the
patrician; in the other, the plebian. Many arguments might have been adduced
to prove the unfitness of two such seemingly contradictory authorities, each
having power to ANNUL or REPEAL the acts of the other. But a man would have
been regarded as frantic who should have attempted at Rome to disprove their
existence. It will be readily understood that I allude to the COMITIA
CENTURIATA and the COMITIA TRIBUTA. The former, in which the people voted by
centuries, was so arranged as to give a superiority to the patrician interest;
in the latter, in which numbers prevailed, the plebian interest had an entire
predominancy. And yet these two legislatures coexisted for ages, and the Roman
republic attained to the utmost height of human greatness.
3 In the case particularly under consideration, there
is no such contradiction as appears in the example cited; there is no power on
either side to annul the acts of the other. And in practice there is little
reason to apprehend any inconvenience; because, in a short course of time, the
wants of the States will naturally reduce themselves within A VERY NARROW
COMPASS; and in the interim, the United States will, in all probability, find
it convenient to abstain wholly from those objects to which the particular
States would be inclined to resort.
4 To form a more precise judgment of the true merits of
this question, it will be well to advert to the proportion between the objects
that will require a federal provision in respect to revenue, and those which
will require a State provision. We shall discover that the former are
altogether unlimited, and that the latter are circumscribed within very
moderate bounds. In pursuing this inquiry, we must bear in mind that we are
not to confine our view to the present period, but to look forward to remote
futurity. Constitutions of civil government are not to be framed upon a
calculation of existing exigencies, but upon a combination of these with the
probable exigencies of ages, according to the natural and tried course of
human affairs. Nothing, therefore, can be more fallacious than to infer the
extent of any power, proper to be lodged in the national government, from an
estimate of its immediate necessities. There ought to be a CAPACITY to provide
for future contingencies as they may happen; and as these are illimitable in
their nature, it is impossible safely to limit that capacity. It is true,
perhaps, that a computation might be made with sufficient accuracy to answer
the purpose of the quantity of revenue requisite to discharge the subsisting
engagements of the Union, and to maintain those establishments which, for some
time to come, would suffice in time of peace. But would it be wise, or would
it not rather be the extreme of folly, to stop at this point, and to leave the
government intrusted with the care of the national defense in a state of
absolute incapacity to provide for the protection of the community against
future invasions of the public peace, by foreign war or domestic convulsions?
If, on the contrary, we ought to exceed this point, where can we stop, short
of an indefinite power of providing for emergencies as they may arise? Though
it is easy to assert, in general terms, the possibility of forming a rational
judgment of a due provision against probable dangers, yet we may safely
challenge those who make the assertion to bring forward their data, and may
affirm that they would be found as vague and uncertain as any that could be
produced to establish the probable duration of the world. Observations
confined to the mere prospects of internal attacks can deserve no weight;
though even these will admit of no satisfactory calculation: but if we mean to
be a commercial people, it must form a part of our policy to be able one day
to defend that commerce. The support of a navy and of naval wars would involve
contingencies that must baffle all the efforts of political arithmetic.
5 Admitting that we ought to try the novel and absurd
experiment in politics of tying up the hands of government from offensive war
founded upon reasons of state, yet certainly we ought not to disable it from
guarding the community against the ambition or enmity of other nations. A
cloud has been for some time hanging over the European world. If it should
break forth into a storm, who can insure us that in its progress a part of its
fury would not be spent upon us? No reasonable man would hastily pronounce
that we are entirely out of its reach. Or if the combustible materials that
now seem to be collecting should be dissipated without coming to maturity, or
if a flame should be kindled without extending to us, what security can we
have that our tranquillity will long remain undisturbed from some other cause
or from some other quarter? Let us recollect that peace or war will not always
be left to our option; that however moderate or unambitious we may be, we
cannot count upon the moderation, or hope to extinguish the ambition of
others. Who could have imagined at the conclusion of the last war that France
and Britain, wearied and exhausted as they both were, would so soon have
looked with so hostile an aspect upon each other? To judge from the history of
mankind, we shall be compelled to conclude that the fiery and destructive
passions of war reign in the human breast with much more powerful sway than
the mild and beneficent sentiments of peace; and that to model our political
systems upon speculations of lasting tranquillity, is to calculate on the
weaker springs of the human character.
6 What are the chief sources of expense in every
government? What has occasioned that enormous accumulation of debts with which
several of the European nations are oppressed? The answers plainly is, wars
and rebellions; the support of those institutions which are necessary to guard
the body politic against these two most mortal diseases of society. The
expenses arising from those institutions which are relative to the mere
domestic police of a state, to the support of its legislative, executive, and
judicial departments, with their different appendages, and to the
encouragement of agriculture and manufactures (which will comprehend almost
all the objects of state expenditure), are insignificant in comparison with
those which relate to the national defense.
7 In the kingdom of Great Britain, where all the
ostentatious apparatus of monarchy is to be provided for, not above a
fifteenth part of the annual income of the nation is appropriated to the class
of expenses last mentioned; the other fourteen fifteenths are absorbed in the
payment of the interest of debts contracted for carrying on the wars in which
that country has been engaged, and in the maintenance of fleets and armies.
If, on the one hand, it should be observed that the expenses incurred in the
prosecution of the ambitious enterprises and vainglorious pursuits of a
monarchy are not a proper standard by which to judge of those which might be
necessary in a republic, it ought, on the other hand, to be remarked that
there should be as great a disproportion between the profusion and
extravagance of a wealthy kingdom in its domestic administration, and the
frugality and economy which in that particular become the modest simplicity of
republican government. If we balance a proper deduction from one side against
that which it is supposed ought to be made from the other, the proportion may
still be considered as holding good.
8 But let us advert to the large debt which we have
ourselves contracted in a single war, and let us only calculate on a common
share of the events which disturb the peace of nations, and we shall instantly
perceive, without the aid of any elaborate illustration, that there must
always be an immense disproportion between the objects of federal and state
expenditures. It is true that several of the States, separately, are
encumbered with considerable debts, which are an excrescence of the late war.
But this cannot happen again, if the proposed system be adopted; and when
these debts are discharged, the only call for revenue of any consequence,
which the State governments will continue to experience, will be for the mere
support of their respective civil list; to which, if we add all contingencies,
the total amount in every State ought to fall considerably short of two
hundred thousand pounds.
9 In framing a government for posterity as well as
ourselves, we ought, in those provisions which are designed to be permanent,
to calculate, not on temporary, but on permanent causes of expense. If this
principle be a just one our attention would be directed to a provision in
favor of the State governments for an annual sum of about two hundred thousand
pounds; while the exigencies of the Union could be susceptible of no limits,
even in imagination. In this view of the subject, by what logic can it be
maintained that the local governments ought to command, in perpetuity, an
EXCLUSIVE source of revenue for any sum beyond the extent of two hundred
thousand pounds? To extend its power further, in EXCLUSION of the authority of
the Union, would be to take the resources of the community out of those hands
which stood in need of them for the public welfare, in order to put them into
other hands which could have no just or proper occasion for them.
10 Suppose, then, the convention had been inclined to
proceed upon the principle of a repartition of the objects of revenue, between
the Union and its members, in PROPORTION to their comparative necessities;
what particular fund could have been selected for the use of the States, that
would not either have been too much or too little too little for their
present, too much for their future wants? As to the line of separation between
external and internal taxes, this would leave to the States, at a rough
computation, the command of two thirds of the resources of the community to
defray from a tenth to a twentieth part of its expenses; and to the Union, one
third of the resources of the community, to defray from nine tenths to
nineteen twentieths of its expenses. If we desert this boundary and content
ourselves with leaving to the States an exclusive power of taxing houses and
lands, there would still be a great disproportion between the MEANS and the
END; the possession of one third of the resources of the community to supply,
at most, one tenth of its wants. If any fund could have been selected and
appropriated, equal to and not greater than the object, it would have been
inadequate to the discharge of the existing debts of the particular States,
and would have left them dependent on the Union for a provision for this
purpose.
11 The preceding train of observation will justify the
position which has been elsewhere laid down, that "A CONCURRENT
JURISDICTION in the article of taxation was the only admissible substitute for
an entire subordination, in respect to this branch of power, of State
authority to that of the Union." Any separation of the objects of revenue
that could have been fallen upon, would have amounted to a sacrifice of the
great INTERESTS of the Union to the POWER of the individual States. The
convention thought the concurrent jurisdiction preferable to that
subordination; and it is evident that it has at least the merit of reconciling
an indefinite constitutional power of taxation in the Federal government with
an adequate and independent power in the States to provide for their own
necessities. There remain a few other lights, in which this important subject
of taxation will claim a further consideration.
PUBLIUS
FEDERALIST No. 35
The Same Subject Continued (Concerning
the General Power of Taxation) For the Independent Journal. Saturday, January
5, 1788
HAMILTON
To the People of the State of New York:
BEFORE we proceed to examine any other objections to
an indefinite power of taxation in the Union, I shall make one general remark;
which is, that if the jurisdiction of the national government, in the article
of revenue, should be restricted to particular objects, it would naturally
occasion an undue proportion of the public burdens to fall upon those objects.
Two evils would spring from this source: the oppression of particular branches
of industry; and an unequal distribution of the taxes, as well among the
several States as among the citizens of the same State.
12 Suppose, as has been contended for, the federal power
of taxation were to be confined to duties on imports, it is evident that the
government, for want of being able to command other resources, would
frequently be tempted to extend these duties to an injurious excess. There are
persons who imagine that they can never be carried to too great a length;
since the higher they are, the more it is alleged they will tend to discourage
an extravagant consumption, to produce a favorable balance of trade, and to
promote domestic manufactures. But all extremes are pernicious in various
ways. Exorbitant duties on imported articles would beget a general spirit of
smuggling; which is always prejudicial to the fair trader, and eventually to
the revenue itself: they tend to render other classes of the community
tributary, in an improper degree, to the manufacturing classes, to whom they
give a premature monopoly of the markets; they sometimes force industry out of
its more natural channels into others in which it flows with less advantage;
and in the last place, they oppress the merchant, who is often obliged to pay
them himself without any retribution from the consumer. When the demand is
equal to the quantity of goods at market, the consumer generally pays the
duty; but when the markets happen to be overstocked, a great proportion falls
upon the merchant, and sometimes not only exhausts his profits, but breaks in
upon his capital. I am apt to think that a division of the duty, between the
seller and the buyer, more often happens than is commonly imagined. It is not
always possible to raise the price of a commodity in exact proportion to every
additional imposition laid upon it. The merchant, especially in a country of
small commercial capital, is often under a necessity of keeping prices down in
order to a more expeditious sale.
13 The maxim that the consumer is the payer, is so much
oftener true than the reverse of the proposition, that it is far more
equitable that the duties on imports should go into a common stock, than that
they should redound to the exclusive benefit of the importing States. But it
is not so generally true as to render it equitable, that those duties should
form the only national fund. When they are paid by the merchant they operate
as an additional tax upon the importing State, whose citizens pay their
proportion of them in the character of consumers. In this view they are
productive of inequality among the States; which inequality would be increased
with the increased extent of the duties. The confinement of the national
revenues to this species of imposts would be attended with inequality, from a
different cause, between the manufacturing and the non-manufacturing States.
The States which can go farthest towards the supply of their own wants, by
their own manufactures, will not, according to their numbers or wealth,
consume so great a proportion of imported articles as those States which are
not in the same favorable situation. They would not, therefore, in this mode
alone contribute to the public treasury in a ratio to their abilities. To make
them do this it is necessary that recourse be had to excises, the proper
objects of which are particular kinds of manufactures. New York is more deeply
interested in these considerations than such of her citizens as contend for
limiting the power of the Union to external taxation may be aware of. New York
is an importing State, and is not likely speedily to be, to any great extent,
a manufacturing State. She would, of course, suffer in a double light from
restraining the jurisdiction of the Union to commercial imposts.
14 So far as these observations tend to inculcate a
danger of the import duties being extended to an injurious extreme it may be
observed, conformably to a remark made in another part of these papers, that
the interest of the revenue itself would be a sufficient guard against such an
extreme. I readily admit that this would be the case, as long as other
resources were open; but if the avenues to them were closed, HOPE, stimulated
by necessity, would beget experiments, fortified by rigorous precautions and
additional penalties, which, for a time, would have the intended effect, till
there had been leisure to contrive expedients to elude these new precautions.
The first success would be apt to inspire false opinions, which it might
require a long course of subsequent experience to correct. Necessity,
especially in politics, often occasions false hopes, false reasonings, and a
system of measures correspondingly erroneous. But even if this supposed excess
should not be a consequence of the limitation of the federal power of
taxation, the inequalities spoken of would still ensue, though not in the same
degree, from the other causes that have been noticed. Let us now return to the
examination of objections.
15 One which, if we may judge from the frequency of its
repetition, seems most to be relied on, is, that the House of Representatives
is not sufficiently numerous for the reception of all the different classes of
citizens, in order to combine the interests and feelings of every part of the
community, and to produce a due sympathy between the representative body and
its constituents. This argument presents itself under a very specious and
seducing form; and is well calculated to lay hold of the prejudices of those
to whom it is addressed. But when we come to dissect it with attention, it
will appear to be made up of nothing but fair-sounding words. The object it
seems to aim at is, in the first place, impracticable, and in the sense in
which it is contended for, is unnecessary. I reserve for another place the
discussion of the question which relates to the sufficiency of the
representative body in respect to numbers, and shall content myself with
examining here the particular use which has been made of a contrary
supposition, in reference to the immediate subject of our inquiries.
16 The idea of an actual representation of all classes
of the people, by persons of each class, is altogether visionary. Unless it
were expressly provided in the Constitution, that each different occupation
should send one or more members, the thing would never take place in practice.
Mechanics and manufacturers will always be inclined, with few exceptions, to
give their votes to merchants, in preference to persons of their own
professions or trades. Those discerning citizens are well aware that the
mechanic and manufacturing arts furnish the materials of mercantile enterprise
and industry. Many of them, indeed, are immediately connected with the
operations of commerce. They know that the merchant is their natural patron
and friend; and they are aware, that however great the confidence they may
justly feel in their own good sense, their interests can be more effectually
promoted by the merchant than by themselves. They are sensible that their
habits in life have not been such as to give them those acquired endowments,
without which, in a deliberative assembly, the greatest natural abilities are
for the most part useless; and that the influence and weight, and superior
acquirements of the merchants render them more equal to a contest with any
spirit which might happen to infuse itself into the public councils,
unfriendly to the manufacturing and trading interests. These considerations,
and many others that might be mentioned prove, and experience confirms it,
that artisans and manufacturers will commonly be disposed to bestow their
votes upon merchants and those whom they recommend. We must therefore consider
merchants as the natural representatives of all these classes of the
community.
17 With regard to the learned professions, little need
be observed; they truly form no distinct interest in society, and according to
their situation and talents, will be indiscriminately the objects of the
confidence and choice of each other, and of other parts of the community.
18 Nothing remains but the landed interest; and this, in
a political view, and particularly in relation to taxes, I take to be
perfectly united, from the wealthiest landlord down to the poorest tenant. No
tax can be laid on land which will not affect the proprietor of millions of
acres as well as the proprietor of a single acre. Every landholder will
therefore have a common interest to keep the taxes on land as low as possible;
and common interest may always be reckoned upon as the surest bond of
sympathy. But if we even could suppose a distinction of interest between the
opulent landholder and the middling farmer, what reason is there to conclude,
that the first would stand a better chance of being deputed to the national
legislature than the last? If we take fact as our guide, and look into our own
senate and assembly, we shall find that moderate proprietors of land prevail
in both; nor is this less the case in the senate, which consists of a smaller
number, than in the assembly, which is composed of a greater number. Where the
qualifications of the electors are the same, whether they have to choose a
small or a large number, their votes will fall upon those in whom they have
most confidence; whether these happen to be men of large fortunes, or of
moderate property, or of no property at all.
19 It is said to be necessary, that all classes of
citizens should have some of their own number in the representative body, in
order that their feelings and interests may be the better understood and
attended to. But we have seen that this will never happen under any
arrangement that leaves the votes of the people free. Where this is the case,
the representative body, with too few exceptions to have any influence on the
spirit of the government, will be composed of landholders, merchants, and men
of the learned professions. But where is the danger that the interests and
feelings of the different classes of citizens will not be understood or
attended to by these three descriptions of men? Will not the landholder know
and feel whatever will promote or insure the interest of landed property? And
will he not, from his own interest in that species of property, be
sufficiently prone to resist every attempt to prejudice or encumber it? Will
not the merchant understand and be disposed to cultivate, as far as may be
proper, the interests of the mechanic and manufacturing arts, to which his
commerce is so nearly allied? Will not the man of the learned profession, who
will feel a neutrality to the rivalships between the different branches of
industry, be likely to prove an impartial arbiter between them, ready to
promote either, so far as it shall appear to him conducive to the general
interests of the society?
20 If we take into the account the momentary humors or
dispositions which may happen to prevail in particular parts of the society,
and to which a wise administration will never be inattentive, is the man whose
situation leads to extensive inquiry and information less likely to be a
competent judge of their nature, extent, and foundation than one whose
observation does not travel beyond the circle of his neighbors and
acquaintances? Is it not natural that a man who is a candidate for the favor
of the people, and who is dependent on the suffrages of his fellow-citizens
for the continuance of his public honors, should take care to inform himself
of their dispositions and inclinations, and should be willing to allow them
their proper degree of influence upon his conduct? This dependence, and the
necessity of being bound himself, and his posterity, by the laws to which he
gives his assent, are the true, and they are the strong chords of sympathy
between the representative and the constituent.
21 There is no part of the administration of government
that requires extensive information and a thorough knowledge of the principles
of political economy, so much as the business of taxation. The man who
understands those principles best will be least likely to resort to oppressive
expedients, or sacrifice any particular class of citizens to the procurement
of revenue. It might be demonstrated that the most productive system of
finance will always be the least burdensome. There can be no doubt that in
order to a judicious exercise of the power of taxation, it is necessary that
the person in whose hands it should be acquainted with the general genius,
habits, and modes of thinking of the people at large, and with the resources
of the country. And this is all that can be reasonably meant by a knowledge of
the interests and feelings of the people. In any other sense the proposition
has either no meaning, or an absurd one. And in that sense let every
considerate citizen judge for himself where the requisite qualification is
most likely to be found.
PUBLIUS
FEDERALIST No. 36
The Same Subject Continued (Concerning
the General Power of Taxation) From the New York Packet.
Tuesday, January 8, 1788.
HAMILTON
To the People of the State of New York:
WE HAVE seen that the result of the observations, to
which the foregoing number has been principally devoted, is, that from the
natural operation of the different interests and views of the various classes
of the community, whether the representation of the people be more or less
numerous, it will consist almost entirely of proprietors of land, of
merchants, and of members of the learned professions, who will truly represent
all those different interests and views. If it should be objected that we have
seen other descriptions of men in the local legislatures, I answer that it is
admitted there are exceptions to the rule, but not in sufficient number to
influence the general complexion or character of the government. There are
strong minds in every walk of life that will rise superior to the
disadvantages of situation, and will command the tribute due to their merit,
not only from the classes to which they particularly belong, but from the
society in general. The door ought to be equally open to all; and I trust, for
the credit of human nature, that we shall see examples of such vigorous plants
flourishing in the soil of federal as well as of State legislation; but
occasional instances of this sort will not render the reasoning founded upon
the general course of things, less conclusive.
2 The subject might be placed in several other lights
that would all lead to the same result; and in particular it might be asked,
What greater affinity or relation of interest can be conceived between the
carpenter and blacksmith, and the linen manufacturer or stocking weaver, than
between the merchant and either of them? It is notorious that there are often
as great rivalships between different branches of the mechanic or
manufacturing arts as there are between any of the departments of labor and
industry; so that, unless the representative body were to be far more numerous
than would be consistent with any idea of regularity or wisdom in its
deliberations, it is impossible that what seems to be the spirit of the
objection we have been considering should ever be realized in practice. But I
forbear to dwell any longer on a matter which has hitherto worn too loose a
garb to admit even of an accurate inspection of its real shape or tendency.
3 There is another objection of a somewhat more precise
nature that claims our attention. It has been asserted that a power of
internal taxation in the national legislature could never be exercised with
advantage, as well from the want of a sufficient knowledge of local
circumstances, as from an interference between the revenue laws of the Union
and of the particular States. The supposition of a want of proper knowledge
seems to be entirely destitute of foundation. If any question is depending in
a State legislature respecting one of the counties, which demands a knowledge
of local details, how is it acquired? No doubt from the information of the
members of the county. Cannot the like knowledge be obtained in the national
legislature from the representatives of each State? And is it not to be
presumed that the men who will generally be sent there will be possessed of
the necessary degree of intelligence to be able to communicate that
information? Is the knowledge of local circumstances, as applied to taxation,
a minute topographical acquaintance with all the mountains, rivers, streams,
highways, and bypaths in each State; or is it a general acquaintance with its
situation and resources, with the state of its agriculture, commerce,
manufactures, with the nature of its products and consumptions, with the
different degrees and kinds of its wealth, property, and industry?
4 Nations in general, even under governments of the
more popular kind, usually commit the administration of their finances to
single men or to boards composed of a few individuals, who digest and prepare,
in the first instance, the plans of taxation, which are afterwards passed into
laws by the authority of the sovereign or legislature.
5 Inquisitive and enlightened statesmen are deemed
everywhere best qualified to make a judicious selection of the objects proper
for revenue; which is a clear indication, as far as the sense of mankind can
have weight in the question, of the species of knowledge of local
circumstances requisite to the purposes of taxation.
6 The taxes intended to be comprised under the general
denomination of internal taxes may be subdivided into those of the DIRECT and
those of the INDIRECT kind. Though the objection be made to both, yet the
reasoning upon it seems to be confined to the former branch. And indeed, as to
the latter, by which must be understood duties and excises on articles of
consumption, one is at a loss to conceive what can be the nature of the
difficulties apprehended. The knowledge relating to them must evidently be of
a kind that will either be suggested by the nature of the article itself, or
can easily be procured from any well-informed man, especially of the
mercantile class. The circumstances that may distinguish its situation in one
State from its situation in another must be few, simple, and easy to be
comprehended. The principal thing to be attended to, would be to avoid those
articles which had been previously appropriated to the use of a particular
State; and there could be no difficulty in ascertaining the revenue system of
each. This could always be known from the respective codes of laws, as well as
from the information of the members from the several States.
7 The objection, when applied to real property or to
houses and lands, appears to have, at first sight, more foundation, but even
in this view it will not bear a close examination. Land taxes are co monly
laid in one of two modes, either by ACTUAL valuations, permanent or
periodical, or by OCCASIONAL assessments, at the discretion, or according to
the best judgment, of certain officers whose duty it is to make them. In
either case, the EXECUTION of the business, which alone requires the knowledge
of local details, must be devolved upon discreet persons in the character of
commissioners or assessors, elected by the people or appointed by the
government for the purpose. All that the law can do must be to name the
persons or to prescribe the manner of their election or appointment, to fix
their numbers and qualifications and to draw the general outlines of their
powers and duties. And what is there in all this that cannot as well be
performed by the national legislature as by a State legislature? The attention
of either can only reach to general principles; local details, as already
observed, must be referred to those who are to execute the plan.
8 But there is a simple point of view in which this
matter may be placed that must be altogether satisfactory. The national
legislature can make use of the SYSTEM OF EACH STATE WITHIN THAT STATE. The
method of laying and collecting this species of taxes in each State can, in
all its parts, be adopted and employed by the federal government.
9 Let it be recollected that the proportion of these
taxes is not to be left to the discretion of the national legislature, but is
to be determined by the numbers of each State, as described in the second
section of the first article. An actual census or enumeration of the people
must furnish the rule, a circumstance which effectually shuts the door to
partiality or oppression. The abuse of this power of taxation seems to have
been provided against with guarded circumspection. In addition to the
precaution just mentioned, there is a provision that "all duties,
imposts, and excises shall be UNIFORM throughout the United States."
10 It has been very properly observed by different
speakers and writers on the side of the Constitution, that if the exercise of
the power of internal taxation by the Union should be discovered on experiment
to be really inconvenient, the federal government may then forbear the use of
it, and have recourse to requisitions in its stead. By way of answer to this,
it has been triumphantly asked, Why not in the first instance omit that
ambiguous power, and rely upon the latter resource? Two solid answers may be
given. The first is, that the exercise of that power, if convenient, will be
preferable, because it will be more effectual; and it is impossible to prove
in theory, or otherwise than by the experiment, that it cannot be
advantageously exercised. The contrary, indeed, appears most probable. The
second answer is, that the existence of such a power in the Constitution will
have a strong influence in giving efficacy to requisitions. When the States
know that the Union can apply itself without their agency, it will be a
powerful motive for exertion on their part.
11 As to the interference of the revenue laws of the
Union, and of its members, we have already seen that there can be no clashing
or repugnancy of authority. The laws cannot, therefore, in a legal sense,
interfere with each other; and it is far from impossible to avoid an
interference even in the policy of their different systems. An effectual
expedient for this purpose will be, mutually, to abstain from those objects
which either side may have first had recourse to. As neither can CONTROL the
other, each will have an obvious and sensible interest in this reciprocal
forbearance. And where there is an IMMEDIATE common interest, we may safely
count upon its operation. When the particular debts of the States are done
away, and their expenses come to be limited within their natural compass, the
possibility almost of interference will vanish. A small land tax will answer
the purpose of the States, and will be their most simple and most fit
resource.
12 Many spectres have been raised out of this power of
internal taxation, to excite the apprehensions of the people: double sets of
revenue officers, a duplication of their burdens by double taxations, and the
frightful forms of odious and oppressive poll-taxes, have been played off with
all the ingenious dexterity of political legerdemain.
13 As to the first point, there are two cases in which
there can be no room for double sets of officers: one, where the right of
imposing the tax is exclusively vested in the Union, which applies to the
duties on imports; the other, where the object has not fallen under any State
regulation or provision, which may be applicable to a variety of objects. In
other cases, the probability is that the United States will either wholly
abstain from the objects preoccupied for local purposes, or will make use of
the State officers and State regulations for collecting the additional
imposition. This will best answer the views of revenue, because it will save
expense in the collection, and will best avoid any occasion of disgust to the
State governments and to the people. At all events, here is a practicable
expedient for avoiding such an inconvenience; and nothing more can be required
than to show that evils predicted to not necessarily result from the plan.
14 As to any argument derived from a supposed system of
influence, it is a sufficient answer to say that it ought not to be presumed;
but the supposition is susceptible of a more precise answer. If such a spirit
should infest the councils of the Union, the most certain road to the
accomplishment of its aim would be to employ the State officers as much as
possible, and to attach them to the Union by an accumulation of their
emoluments. This would serve to turn the tide of State influence into the
channels of the national government, instead of making federal influence flow
in an opposite and adverse current. But all suppositions of this kind are
invidious, and ought to be banished from the consideration of the great
question before the people. They can answer no other end than to cast a mist
over the truth.
15 As to the suggestion of double taxation, the answer
is plain. The wants of the Union are to be supplied in one way or another; if
to be done by the authority of the federal government, it will not be to be
done by that of the State government. The quantity of taxes to be paid by the
community must be the same in either case; with this advantage, if the
provision is to be made by the Union that the capital resource of commercial
imposts, which is the most convenient branch of revenue, can be prudently
improved to a much greater extent under federal than under State regulation,
and of course will render it less necessary to recur to more inconvenient
methods; and with this further advantage, that as far as there may be any real
difficulty in the exercise of the power of internal taxation, it will impose a
disposition to greater care in the choice and arrangement of the means; and
must naturally tend to make it a fixed point of policy in the national
administration to go as far as may be practicable in making the luxury of the
rich tributary to the public treasury, in order to diminish the necessity of
those impositions which might create dissatisfaction in the poorer and most
numerous classes of the society. Happy it is when the interest which the
government has in the preservation of its own power, coincides with a proper
distribution of the public burdens, and tends to guard the least wealthy part
of the community from oppression!
16 As to poll taxes, I, without scruple, confess my
disapprobation of them; and though they have prevailed from an early period in
those States[1] which have uniformly been the most tenacious of their rights,
I should lament to see them introduced into practice under the national
government. But does it follow because there is a power to lay them that they
will actually be laid? Every State in the Union has power to impose taxes of
this kind; and yet in several of them they are unknown in practice. Are the
State governments to be stigmatized as tyrannies, because they possess this
power? If they are not, with what propriety can the like power justify such a
charge against the national government, or even be urged as an obstacle to its
adoption? As little friendly as I am to the species of imposition, I still
feel a thorough conviction that the power of having recourse to it ought to
exist in the federal government. There are certain emergencies of nations, in
which expedients, that in the ordinary state of things ought to be forborne,
become essential to the public weal. And the government, from the possibility
of such emergencies, ought ever to have the option of making use of them. The
real scarcity of objects in this country, which may be considered as
productive sources of revenue, is a reason peculiar to itself, for not
abridging the discretion of the national councils in this respect. There may
exist certain critical and tempestuous conjunctures of the State, in which a
poll tax may become an inestimable resource. And as I know nothing to exempt
this portion of the globe from the common calamities that have befallen other
parts of it, I acknowledge my aversion to every project that is calculated to
disarm the government of a single weapon, which in any possible contingency
might be usefully employed for the general defense and security.
17 [I have now gone through the examination of such of
the powers proposed to be vested in the United States, which may be considered
as having an immediate relation to the energy of the government; and have
endeavored to answer the principal objections which have been made to them. I
have passed over in silence those minor authorities, which are either too
inconsiderable to have been thought worthy of the hostilities of the opponents
of the Constitution, or of too manifest propriety to admit of controversy. The
mass of judiciary power, however, might have claimed an investigation under
this head, had it not been for the consideration that its organization and its
extent may be more advantageously considered in connection. This has
determined me to refer it to the branch of our inquiries upon which we shall
next enter.][E1]
18 [I have now gone through the examination of those
powers proposed to be conferred upon the federal government which relate more
peculiarly to its energy, and to its efficiency for answering the great and
primary objects of union. There are others which, though omitted here, will,
in order to render the view of the subject more complete, be taken notice of
under the next head of our inquiries. I flatter myself the progress already
made will have sufficed to satisfy the candid and judicious part of the
community that some of the objections which have been most strenuously urged
against the Constitution, and which were most formidable in their first
appearance, are not only destitute of substance, but if they had operated in
the formation of the plan, would have rendered it incompetent to the great
ends of public happiness and national prosperity. I equally flatter myself
that a further and more critical investigation of the system will serve to
recommend it still more to every sincere and disinterested advocate for good
government and will leave no doubt with men of this character of the propriety
and expediency of adopting it. Happy will it be for ourselves, and more
honorable for human nature, if we have wisdom and virtue enough to set so
glorious an example to mankind!][E1]
PUBLIUS
1. The New England States.
E1. Two versions of this paragraph appear in
different editions.
FEDERALIST No. 37
Concerning the Difficulties of the
Convention in Devising a Proper Form of Government
From the Daily Advertiser.
Friday, January 11, 1788.
MADISON
To the People of the State of New York:
IN REVIEWING the defects of the existing
Confederation, and showing that they cannot be supplied by a government of
less energy than that before the public, several of the most important
principles of the latter fell of course under consideration. But as the
ultimate object of these papers is to determine clearly and fully the merits
of this Constitution, and the expediency of adopting it, our plan cannot be
complete without taking a more critical and thorough survey of the work of the
convention, without examining it on all its sides, comparing it in all its
parts, and calculating its probable effects. That this remaining task may be
executed under impressions conducive to a just and fair result, some
reflections must in this place be indulged, which candor previously suggests.
2 It is a misfortune, inseparable from human affairs,
that public measures are rarely investigated with that spirit of moderation
which is essential to a just estimate of their real tendency to advance or
obstruct the public good; and that this spirit is more apt to be diminished
than promoted, by those occasions which require an unusual exercise of it. To
those who have been led by experience to attend to this consideration, it
could not appear surprising, that the act of the convention, which recommends
so many important changes and innovations, which may be viewed in so many
lights and relations, and which touches the springs of so many passions and
interests, should find or excite dispositions unfriendly, both on one side and
on the other, to a fair discussion and accurate judgment of its merits. In
some, it has been too evident from their own publications, that they have
scanned the proposed Constitution, not only with a predisposition to censure,
but with a predetermination to condemn; as the language held by others betrays
an opposite predetermination or bias, which must render their opinions also of
little moment in the question. In placing, however, these different characters
on a level, with respect to the weight of their opinions, I wish not to
insinuate that there may not be a material difference in the purity of their
intentions. It is but just to remark in favor of the latter description, that
as our situation is universally admitted to be peculiarly critical, and to
require indispensably that something should be done for our relief, the
predetermined patron of what has been actually done may have taken his bias
from the weight of these considerations, as well as from considerations of a
sinister nature. The predetermined adversary, on the other hand, can have been
governed by no venial motive whatever. The intentions of the first may be
upright, as they may on the contrary be culpable. The views of the last cannot
be upright, and must be culpable. But the truth is, that these papers are not
addressed to persons falling under either of these characters. They solicit
the attention of those only, who add to a sincere zeal for the happiness of
their country, a temper favorable to a just estimate of the means of promoting
it.
3 Persons of this character will proceed to an
examination of the plan submitted by the convention, not only without a
disposition to find or to magnify faults; but will see the propriety of
reflecting, that a faultless plan was not to be expected. Nor will they barely
make allowances for the errors which may be chargeable on the fallibility to
which the convention, as a body of men, were liable; but will keep in mind,
that they themselves also are but men, and ought not to assume an
infallibility in rejudging the fallible opinions of others.
4 With equal readiness will it be perceived, that
besides these inducements to candor, many allowances ought to be made for the
difficulties inherent in the very nature of the undertaking referred to the
convention.
5 The novelty of the undertaking immediately strikes
us. It has been shown in the course of these papers, that the existing
Confederation is founded on principles which are fallacious; that we must
consequently change this first foundation, and with it the superstructure
resting upon it. It has been shown, that the other confederacies which could
be consulted as precedents have been vitiated by the same erroneous
principles, and can therefore furnish no other light than that of beacons,
which give warning of the course to be shunned, without pointing out that
which ought to be pursued. The most that the convention could do in such a
situation, was to avoid the errors suggested by the past experience of other
countries, as well as of our own; and to provide a convenient mode of
rectifying their own errors, as future experiences may unfold them.
6 Among the difficulties encountered by the convention,
a very important one must have lain in combining the requisite stability and
energy in government, with the inviolable attention due to liberty and to the
republican form. Without substantially accomplishing this part of their
undertaking, they would have very imperfectly fulfilled the object of their
appointment, or the expectation of the public; yet that it could not be easily
accomplished, will be denied by no one who is unwilling to betray his
ignorance of the subject. Energy in government is essential to that security
against external and internal danger, and to that prompt and salutary
execution of the laws which enter into the very definition of good government.
Stability in government is essential to national character and to the
advantages annexed to it, as well as to that repose and confidence in the
minds of the people, which are among the chief blessings of civil society. An
irregular and mutable legislation is not more an evil in itself than it is
odious to the people; and it may be pronounced with assurance that the people
of this country, enlightened as they are with regard to the nature, and
interested, as the great body of them are, in the effects of good government,
will never be satisfied till some remedy be applied to the vicissitudes and
uncertainties which characterize the State administrations. On comparing,
however, these valuable ingredients with the vital principles of liberty, we
must perceive at once the difficulty of mingling them together in their due
proportions. The genius of republican liberty seems to demand on one side, not
only that all power should be derived from the people, but that those
intrusted with it should be kept in independence on the people, by a short
duration of their appointments; and that even during this short period the
trust should be placed not in a few, but a number of hands. Stability, on the
contrary, requires that the hands in which power is lodged should continue for
a length of time the same. A frequent change of men will result from a
frequent return of elections; and a frequent change of measures from a
frequent change of men: whilst energy in government requires not only a
certain duration of power, but the execution of it by a single hand.
7 How far the convention may have succeeded in this
part of their work, will better appear on a more accurate view of it. From the
cursory view here taken, it must clearly appear to have been an arduous part.
8 Not less arduous must have been the task of marking
the proper line of partition between the authority of the general and that of
the State governments. Every man will be sensible of this difficulty, in
proportion as he has been accustomed to contemplate and discriminate objects
extensive and complicated in their nature. The faculties of the mind itself
have never yet been distinguished and defined, with satisfactory precision, by
all the efforts of the most acute and metaphysical philosophers. Sense,
perception, judgment, desire, volition, memory, imagination, are found to be
separated by such delicate shades and minute gradations that their boundaries
have eluded the most subtle investigations, and remain a pregnant source of
ingenious disquisition and controversy. The boundaries between the great
kingdom of nature, and, still more, between the various provinces, and lesser
portions, into which they are subdivided, afford another illustration of the
same important truth. The most sagacious and laborious naturalists have never
yet succeeded in tracing with certainty the line which separates the district
of vegetable life from the neighboring region of unorganized matter, or which
marks the ermination of the former and the commencement of the animal empire.
A still greater obscurity lies in the distinctive characters by which the
objects in each of these great departments of nature have been arranged and
assorted.
9 When we pass from the works of nature, in which all
the delineations are perfectly accurate, and appear to be otherwise only from
the imperfection of the eye which surveys them, to the institutions of man, in
which the obscurity arises as well from the object itself as from the organ by
which it is contemplated, we must perceive the necessity of moderating still
further our expectations and hopes from the efforts of human sagacity.
Experience has instructed us that no skill in the science of government has
yet been able to discriminate and define, with sufficient certainty, its three
great provinces the legislative, executive, and judiciary; or even the
privileges and powers of the different legislative branches. Questions daily
occur in the course of practice, which prove the obscurity which reins in
these subjects, and which puzzle the greatest adepts in political science.
10 The experience of ages, with the continued and
combined labors of the most enlightened legislatures and jurists, has been
equally unsuccessful in delineating the several objects and limits of
different codes of laws and different tribunals of justice. The precise extent
of the common law, and the statute law, the maritime law, the ecclesiastical
law, the law of corporations, and other local laws and customs, remains still
to be clearly and finally established in Great Britain, where accuracy in such
subjects has been more industriously pursued than in any other part of the
world. The jurisdiction of her several courts, general and local, of law, of
equity, of admiralty, etc., is not less a source of frequent and intricate
discussions, sufficiently denoting the indeterminate limits by which they are
respectively circumscribed. All new laws, though penned with the greatest
technical skill, and passed on the fullest and most mature deliberation, are
considered as more or less obscure and equivocal, until their meaning be
liquidated and ascertained by a series of particular discussions and
adjudications. Besides the obscurity arising from the complexity of objects,
and the imperfection of the human faculties, the medium through which the
conceptions of men are conveyed to each other adds a fresh embarrassment. The
use of words is to express ideas. Perspicuity, therefore, requires not only
that the ideas should be distinctly formed, but that they should be expressed
by words distinctly and exclusively appropriate to them. But no language is so
copious as to supply words and phrases for every complex idea, or so correct
as not to include many equivocally denoting different ideas. Hence it must
happen that however accurately objects may be discriminated in themselves, and
however accurately the discrimination may be considered, the definition of
them may be rendered inaccurate by the inaccuracy of the terms in which it is
delivered. And this unavoidable inaccuracy must be greater or less, according
to the complexity and novelty of the objects defined. When the Almighty
himself condescends to address mankind in their own language, his meaning,
luminous as it must be, is rendered dim and doubtful by the cloudy medium
through which it is communicated.
11 Here, then, are three sources of vague and incorrect
definitions: indistinctness of the object, imperfection of the organ of
conception, inadequateness of the vehicle of ideas. Any one of these must
produce a certain degree of obscurity. The convention, in delineating the
boundary between the federal and State jurisdictions, must have experienced
the full effect of them all.
12 To the difficulties already mentioned may be added
the interfering pretensions of the larger and smaller States. We cannot err in
supposing that the former would contend for a participation in the government,
fully proportioned to their superior wealth and importance; and that the
latter would not be less tenacious of the equality at present enjoyed by them.
We may well suppose that neither side would entirely yield to the other, and
consequently that the struggle could be terminated only by compromise. It is
extremely probable, also, that after the ratio of representation had been
adjusted, this very compromise must have produced a fresh struggle between the
same parties, to give such a turn to the organization of the government, and
to the distribution of its powers, as would increase the importance of the
branches, in forming which they had respectively obtained the greatest share
of influence. There are features in the Constitution which warrant each of
these suppositions; and as far as either of them is well founded, it shows
that the convention must have been compelled to sacrifice theoretical
propriety to the force of extraneous considerations.
13 Nor could it have been the large and small States
only, which would marshal themselves in opposition to each other on various
points. Other combinations, resulting from a difference of local position and
policy, must have created additional difficulties. As every State may be
divided into different districts, and its citizens into different classes,
which give birth to contending interests and local jealousies, so the
different parts of the United States are distinguished from each other by a
variety of circumstances, which produce a like effect on a larger scale. And
although this variety of interests, for reasons sufficiently explained in a
former paper, may have a salutary influence on the administration of the
government when formed, yet every one must be sensible of the contrary
influence, which must have been experienced in the task of forming it.
14 Would it be wonderful if, under the pressure of all
these difficulties, the convention should have been forced into some
deviations from that artificial structure and regular symmetry which an
abstract view of the subject might lead an ingenious theorist to bestow on a
Constitution planned in his closet or in his imagination? The real wonder is
that so many difficulties should have been surmounted, and surmounted with a
unanimity almost as unprecedented as it must have been unexpected. It is
impossible for any man of candor to reflect on this circumstance without
partaking of the astonishment. It is impossible for the man of pious
reflection not to perceive in it a finger of that Almighty hand which has been
so frequently and signally extended to our relief in the critical stages of
the revolution.
15 We had occasion, in a former paper, to take notice of
the repeated trials which have been unsuccessfully made in the United
Netherlands for reforming the baneful and notorious vices of their
constitution. The history of almost all the great councils and consultations
held among mankind for reconciling their discordant opinions, assuaging their
mutual jealousies, and adjusting their respective interests, is a history of
factions, contentions, and disappointments, and may be classed among the most
dark and degraded pictures which display the infirmities and depravities of
the human character. If, in a few scattered instances, a brighter aspect is
presented, they serve only as exceptions to admonish us of the general truth;
and by their lustre to darken the gloom of the adverse prospect to which they
are contrasted. In revolving the causes from which these exceptions result,
and applying them to the particular instances before us, we are necessarily
led to two important conclusions. The first is, that the convention must have
enjoyed, in a very singular degree, an exemption from the pestilential
influence of party animosities the disease most incident to deliberative
bodies, and most apt to contaminate their proceedings. The second conclusion
is that all the deputations composing the convention were satisfactorily
accommodated by the final act, or were induced to accede to it by a deep
conviction of the necessity of sacrificing private opinions and partial
interests to the public good, and by a despair of seeing this necessity
diminished by delays or by new experiments.
FEDERALIST No. 38
The Same Subject Continued, and the
Incoherence of the Objections to the New Plan Exposed
From the Independent Journal.
Saturday, January 12, 1788.
MADISON
To the People of the State of New York:
IT IS not a little remarkable that in every case
reported by ancient history, in which government has been established with
deliberation and consent, the task of framing it has not been committed to an
assembly of men, but has been performed by some individual citizen of
preeminent wisdom and approved integrity.
2 Minos, we learn, was the primitive founder of the
government of Crete, as Zaleucus was of that of the Locrians. Theseus first,
and after him Draco and Solon, instituted the government of Athens. Lycurgus
was the lawgiver of Sparta. The foundation of the original government of Rome
was laid by Romulus, and the work completed by two of his elective successors,
Numa and Tullius Hostilius. On the abolition of royalty the consular
administration was substituted by Brutus, who stepped forward with a project
for such a reform, which, he alleged, had been prepared by Tullius Hostilius,
and to which his address obtained the assent and ratification of the senate
and people. This remark is applicable to confederate governments also.
Amphictyon, we are told, was the author of that which bore his name. The
Achaean league received its first birth from Achaeus, and its second from
Aratus.
3 What degree of agency these reputed lawgivers might
have in their respective establishments, or how far they might be clothed with
the legitimate authority of the people, cannot in every instance be
ascertained. In some, however, the proceeding was strictly regular. Draco
appears to have been intrusted by the people of Athens with indefinite powers
to reform its government and laws. And Solon, according to Plutarch, was in a
manner compelled, by the universal suffrage of his fellow-citizens, to take
upon him the sole and absolute power of new-modeling the constitution. The
proceedings under Lycurgus were less regular; but as far as the advocates for
a regular reform could prevail, they all turned their eyes towards the single
efforts of that celebrated patriot and sage, instead of seeking to bring about
a revolution by the intervention of a deliberative body of citizens.
4 Whence could it have proceeded, that a people,
jealous as the Greeks were of their liberty, should so far abandon the rules
of caution as to place their destiny in the hands of a single citizen? Whence
could it have proceeded, that the Athenians, a people who would not suffer an
army to be commanded by fewer than ten generals, and who required no other
proof of danger to their liberties than the illustrious merit of a
fellow-citizen, should consider one illustrious citizen as a more eligible
depositary of the fortunes of themselves and their posterity, than a select
body of citizens, from whose common deliberations more wisdom, as well as more
safety, might have been expected? These questions cannot be fully answered,
without supposing that the fears of discord and disunion among a number of
counsellors exceeded the apprehension of treachery or incapacity in a single
individual. History informs us, likewise, of the difficulties with which these
celebrated reformers had to contend, as well as the expedients which they were
obliged to employ in order to carry their reforms into effect. Solon, who
seems to have indulged a more temporizing policy, confessed that he had not
given to his countrymen the government best suited to their happiness, but
most tolerable to their prejudices. And Lycurgus, more true to his object, was
under the necessity of mixing a portion of violence with the authority of
superstition, and of securing his final success by a voluntary renunciation,
first of his country, and then of his life. If these lessons teach us, on one
hand, to admire the improvement made by America on the ancient mode of
preparing and establishing regular plans of government, they serve not less,
on the other, to admonish us of the hazards and difficulties incident to such
experiments, and of the great imprudence of unnecessarily multiplying them.
5 Is it an unreasonable conjecture, that the errors
which may be contained in the plan of the convention are such as have resulted
rather from the defect of antecedent experience on this complicated and
difficult subject, than from a want of accuracy or care in the investigation
of it; and, consequently such as will not be ascertained until an actual trial
shall have pointed them out? This conjecture is rendered probable, not only by
many considerations of a general nature, but by the particular case of the
Articles of Confederation. It is observable that among the numerous objections
and amendments suggested by the several States, when these articles were
submitted for their ratification, not one is found which alludes to the great
and radical error which on actual trial has discovered itself. And if we
except the observations which New Jersey was led to make, rather by her local
situation, than by her peculiar foresight, it may be questioned whether a
single suggestion was of sufficient moment to justify a revision of the
system. There is abundant reason, nevertheless, to suppose that immaterial as
these objections were, they would have been adhered to with a very dangerous
inflexibility, in some States, had not a zeal for their opinions and supposed
interests been stifled by the more powerful sentiment of selfpreservation. One
State, we may remember, persisted for several years in refusing her
concurrence, although the enemy remained the whole period at our gates, or
rather in the very bowels of our country. Nor was her pliancy in the end
effected by a less motive, than the fear of being chargeable with protracting
the public calamities, and endangering the event of the contest. Every candid
reader will make the proper reflections on these important facts.
6 A patient who finds his disorder daily growing worse,
and that an efficacious remedy can no longer be delayed without extreme
danger, after coolly revolving his situation, and the characters of different
physicians, selects and calls in such of them as he judges most capable of
administering relief, and best entitled to his confidence. The physicians
attend; the case of the patient is carefully examined; a consultation is held;
they are unanimously agreed that the symptoms are critical, but that the case,
with proper and timely relief, is so far from being desperate, that it may be
made to issue in an improvement of his constitution. They are equally
unanimous in prescribing the remedy, by which this happy effect is to be
produced. The prescription is no sooner made known, however, than a number of
persons interpose, and, without denying the reality or danger of the disorder,
assure the patient that the prescription will be poison to his constitution,
and forbid him, under pain of certain death, to make use of it. Might not the
patient reasonably demand, before he ventured to follow this advice, that the
authors of it should at least agree among themselves on some other remedy to
be substituted? And if he found them differing as much from one another as
from his first counsellors, would he not act prudently in trying the
experiment unanimously recommended by the latter, rather than be hearkening to
those who could neither deny the necessity of a speedy remedy, nor agree in
proposing one?
7 Such a patient and in such a situation is America at
this moment. She has been sensible of her malady. She has obtained a regular
and unanimous advice from men of her own deliberate choice. And she is warned
by others against following this advice under pain of the most fatal
consequences. Do the monitors deny the reality of her danger? No. Do they deny
the necessity of some speedy and powerful remedy? No. Are they agreed, are any
two of them agreed, in their objections to the remedy proposed, or in the
proper one to be substituted? Let them speak for themselves. This one tells us
that the proposed Constitution ought to be rejected, because it is not a
confederation of the States, but a government over individuals. Another admits
that it ought to be a government over individuals to a certain extent, but by
no means to the extent proposed. A third does not object to the government
over individuals, or to the extent proposed, but to the want of a bill of
rights. A fourth concurs in the absolute necessity of a bill of rights, but
contends that it ought to be declaratory, not of the personal rights of
individuals, but of the rights reserved to the States in their political
capacity. A fifth is of opinion that a bill of rights of any sort would be
superfluous and misplaced, and that the plan would be unexceptionable but for
the fatal power of regulating the times and places of election. An objector in
a large State exclaims loudly against the unreasonable equality of
representation in the Senate. An objector in a small State is equally loud
against the dangerous inequality in the House of Representatives. From this
quarter, we are alarmed with the amazing expense, from the number of persons
who are to administer the new government. From another quarter, and sometimes
from the same quarter, on another occasion, the cry is that the Congress will
be but a shadow of a representation, and that the government would be far less
objectionable if the number and the expense were doubled. A patriot in a State
that does not import or export, discerns insuperable objections against the
power of direct taxation. The patriotic adversary in a State of great exports
and imports, is not less dissatisfied that the whole burden of taxes may be
thrown on consumption. This politician discovers in the Constitution a direct
and irresistible tendency to monarchy; that is equally sure it will end in
aristocracy. Another is puzzled to say which of these shapes it will
ultimately assume, but sees clearly it must be one or other of them; whilst a
fourth is not wanting, who with no less confidence affirms that the
Constitution is so far from having a bias towards either of these dangers,
that the weight on that side will not be sufficient to keep it upright and
firm against its opposite propensities. With another class of adversaries to
the Constitution the language is that the legislative, executive, and
judiciary departments are intermixed in such a manner as to contradict all the
ideas of regular government and all the requisite precautions in favor of
liberty. Whilst this objection circulates in vague and general expressions,
there are but a few who lend their sanction to it. Let each one come forward
with his particular explanation, and scarce any two are exactly agreed upon
the subject. In the eyes of one the junction of the Senate with the President
in the responsible function of appointing to offices, instead of vesting this
executive power in the Executive alone, is the vicious part of the
organization. To another, the exclusion of the House of Representatives, whose
numbers alone could be a due security against corruption and partiality in the
exercise of such a power, is equally obnoxious. With another, the admission of
the President into any share of a power which ever must be a dangerous engine
in the hands of the executive magistrate, is an unpardonable violation of the
maxims of republican jealousy. No part of the arrangement, according to some,
is more inadmissible than the trial of impeachments by the Senate, which is
alternately a member both of the legislative and executive departments, when
this power so evidently belonged to the judiciary department. "We concur
fully," reply others, "in the objection to this part of the plan,
but we can never agree that a reference of impeachments to the judiciary
authority would be an amendment of the error. Our principal dislike to the
organization arises from the extensive powers already lodged in that
department." Even among the zealous patrons of a council of state the
most irreconcilable variance is discovered concerning the mode in which it
ought to be constituted. The demand of one gentleman is, that the council
should consist of a small number to be appointed by the most numerous branch
of the legislature. Another would prefer a larger number, and considers it as
a fundamental condition that the appointment should be made by the President
himself.
8 As it can give no umbrage to the writers against the
plan of the federal Constitution, let us suppose, that as they are the most
zealous, so they are also the most sagacious, of those who think the late
convention were unequal to the task assigned them, and that a wiser and better
plan might and ought to be substituted. Let us further suppose that their
country should concur, both in this favorable opinion of their merits, and in
their unfavorable opinion of the convention; and should accordingly proceed to
form them into a second convention, with full powers, and for the express
purpose of revising and remoulding the work of the first. Were the experiment
to be seriously made, though it required some effort to view it seriously even
in fiction, I leave it to be decided by the sample of opinions just exhibited,
whether, with all their enmity to their predecessors, they would, in any one
point, depart so widely from their example, as in the discord and ferment that
would mark their own deliberations; and whether the Constitution, now before
the public, would not stand as fair a chance for immortality, as Lycurgus gave
to that of Sparta, by making its change to depend on his own return from exile
and death, if it were to be immediately adopted, and were to continue in
force, not until a BETTER, but until ANOTHER should be agreed upon by this new
assembly of lawgivers.
9 It is a matter both of wonder and regret, that those
who raise so many objections against the new Constitution should never call to
mind the defects of that which is to be exchanged for it. It is not necessary
that the former should be perfect; it is sufficient that the latter is more
imperfect. No man would refuse to give brass for silver or gold, because the
latter had some alloy in it. No man would refuse to quit a shattered and
tottering habitation for a firm and commodious building, because the latter
had not a porch to it, or because some of the rooms might be a little larger
or smaller, or the ceilings a little higher or lower than his fancy would have
planned them. But waiving illustrations of this sort, is it not manifest that
most of the capital objections urged against the new system lie with tenfold
weight against the existing Confederation? Is an indefinite power to raise
money dangerous in the hands of the federal government? The present Congress
can make requisitions to any amount they please, and the States are
constitutionally bound to furnish them; they can emit bills of credit as long
as they will pay for the paper; they can borrow, both abroad and at home, as
long as a shilling will be lent. Is an indefinite power to raise troops
dangerous? The Confederation gives to Congress that power also; and they have
already begun to make use of it. Is it improper and unsafe to intermix the
different powers of government in the same body of men? Congress, a single
body of men, are the sole depositary of all the federal powers. Is it
particularly dangerous to give the keys of the treasury, and the command of
the army, into the same hands? The Confederation places them both in the hands
of Congress. Is a bill of rights essential to liberty? The Confederation has
no bill of rights. Is it an objection against the new Constitution, that it
empowers the Senate, with the concurrence of the Executive, to make treaties
which are to be the laws of the land? The existing Congress, without any such
control, can make treaties which they themselves have declared, and most of
the States have recognized, to be the supreme law of the land. Is the
importation of slaves permitted by the new Constitution for twenty years? By
the old it is permitted forever.
10 I shall be told, that however dangerous this mixture
of powers may be in theory, it is rendered harmless by the dependence of
Congress on the State for the means of carrying them into practice; that
however large the mass of powers may be, it is in fact a lifeless mass. Then,
say I, in the first place, that the Confederation is chargeable with the still
greater folly of declaring certain powers in the federal government to be
absolutely necessary, and at the same time rendering them absolutely nugatory;
and, in the next place, that if the Union is to continue, and no better
government be substituted, effective powers must either be granted to, or
assumed by, the existing Congress; in either of which events, the contrast
just stated will hold good. But this is not all. Out of this lifeless mass has
already grown an excrescent power, which tends to realize all the dangers that
can be apprehended from a defective construction of the supreme government of
the Union. It is now no longer a point of speculation and hope, that the
Western territory is a mine of vast wealth to the United States; and although
it is not of such a nature as to extricate them from their present distresses,
or for some time to come, to yield any regular supplies for the public
expenses, yet must it hereafter be able, under proper management, both to
effect a gradual discharge of the domestic debt, and to furnish, for a certain
period, liberal tributes to the federal treasury. A very large proportion of
this fund has been already surrendered by individual States; and it may with
reason be expected that the remaining States will not persist in withholding
similar proofs of their equity and generosity. We may calculate, therefore,
that a rich and fertile country, of an area equal to the inhabited extent of
the United States, will soon become a national stock. Congress have assumed
the administration of this stock. They have begun to render it productive.
Congress have undertaken to do more: they have proceeded to form new States,
to erect temporary governments, to appoint officers for them, and to prescribe
the conditions on which such States shall be admitted into the Confederacy.
All this has been done; and done without the least color of constitutional
authority. Yet no blame has been whispered; no alarm has been sounded. A GREAT
and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of
men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to
their support for an INDEFINITE PERIOD OF TIME. And yet there are men, who
have not only been silent spectators of this prospect, but who are advocates
for the system which exhibits it; and, at the same time, urge against the new
system the objections which we have heard. Would they not act with more
consistency, in urging the establishment of the latter, as no less necessary
to guard the Union against the future powers and resources of a body
constructed like the existing Congress, than to save it from the dangers
threatened by the present impotency of that Assembly?
11 I mean not, by any thing here said, to throw censure
on the measures which have been pursued by Congress. I am sensible they could
not have done otherwise. The public interest, the necessity of the case,
imposed upon them the task of overleaping their constitutional limits. But is
not the fact an alarming proof of the danger resulting from a government which
does not possess regular powers commensurate to its objects? A dissolution or
usurpation is the dreadful dilemma to which it is continually exposed.
PUBLIUS
FEDERALIST No. 39
The Conformity of the Plan to Republican Principles
For the Independent Journal.
Wednesday, January 16, 1788
MADISON
To the People of the State of New York:
THE last paper having concluded the observations
which were meant to introduce a candid survey of the plan of government
reported by the convention, we now proceed to the execution of that part of
our undertaking.
2 The first question that offers itself is, whether the
general form and aspect of the government be strictly republican. It is
evident that no other form would be reconcilable with the genius of the people
of America; with the fundamental principles of the Revolution; or with that
honorable determination which animates every votary of freedom, to rest all
our political experiments on the capacity of mankind for self-government. If
the plan of the convention, therefore, be found to depart from the republican
character, its advocates must abandon it as no longer defensible.
3 What, then, are the distinctive characters of the
republican form? Were an answer to this question to be sought, not by
recurring to principles, but in the application of the term by political
writers, to the constitution of different States, no satisfactory one would
ever be found. Holland, in which no particle of the supreme authority is
derived from the people, has passed almost universally under the denomination
of a republic. The same title has been bestowed on Venice, where absolute
power over the great body of the people is exercised, in the most absolute
manner, by a small body of hereditary nobles. Poland, which is a mixture of
aristocracy and of monarchy in their worst forms, has been dignified with the
same appellation. The government of England, which has one republican branch
only, combined with an hereditary aristocracy and monarchy, has, with equal
impropriety, been frequently placed on the list of republics. These examples,
which are nearly as dissimilar to each other as to a genuine republic, show
the extreme inaccuracy with which the term has been used in political
disquisitions.
4 If we resort for a criterion to the different
principles on which different forms of government are established, we may
define a republic to be, or at least may bestow that name on, a government
which derives all its powers directly or indirectly from the great body of the
people, and is administered by persons holding their offices during pleasure,
for a limited period, or during good behavior. It is ESSENTIAL to such a
government that it be derived from the great body of the society, not from an
inconsiderable proportion, or a favored class of it; otherwise a handful of
tyrannical nobles, exercising their oppressions by a delegation of their
powers, might aspire to the rank of republicans, and claim for their
government the honorable title of republic. It is SUFFICIENT for such a
government that the persons administering it be appointed, either directly or
indirectly, by the people; and that they hold their appointments by either of
the tenures just specified; otherwise every government in the United States,
as well as every other popular government that has been or can be well
organized or well executed, would be degraded from the republican character.
According to the constitution of every State in the Union, some or other of
the officers of government are appointed indirectly only by the people.
According to most of them, the chief magistrate himself is so appointed. And
according to one, this mode of appointment is extended to one of the
co-ordinate branches of the legislature. According to all the constitutions,
also, the tenure of the highest offices is extended to a definite period, and
in many instances, both within the legislative and executive departments, to a
period of years. According to the provisions of most of the constitutions,
again, as well as according to the most respectable and received opinions on
the subject, the members of the judiciary department are to retain their
offices by the firm tenure of good behavior.
5 On comparing the Constitution planned by the
convention with the standard here fixed, we perceive at once that it is, in
the most rigid sense, conformable to it. The House of Representatives, like
that of one branch at least of all the State legislatures, is elected
immediately by the great body of the people. The Senate, like the present
Congress, and the Senate of Maryland, derives its appointment indirectly from
the people. The President is indirectly derived from the choice of the people,
according to the example in most of the States. Even the judges, with all
other officers of the Union, will, as in the several States, be the choice,
though a remote choice, of the people themselves, the duration of the
appointments is equally conformable to the republican standard, and to the
model of State constitutions The House of Representatives is periodically
elective, as in all the States; and for the period of two years, as in the
State of South Carolina. The Senate is elective, for the period of six years;
which is but one year more than the period of the Senate of Maryland, and but
two more than that of the Senates of New York and Virginia. The President is
to continue in office for the period of four years; as in New York and
Delaware, the chief magistrate is elected for three years, and in South
Carolina for two years. In the other States the election is annual. In several
of the States, however, no constitutional provision is made for the
impeachment of the chief magistrate. And in Delaware and Virginia he is not
impeachable till out of office. The President of the United States is
impeachable at any time during his continuance in office. The tenure by which
the judges are to hold their places, is, as it unquestionably ought to be,
that of good behavior. The tenure of the ministerial offices generally, will
be a subject of legal regulation, conformably to the reason of the case and
the example of the State constitutions.
6 Could any further proof be required of the republican
complexion of this system, the most decisive one might be found in its
absolute prohibition of titles of nobility, both under the federal and the
State governments; and in its express guaranty of the republican form to each
of the latter.
7 "But it was not sufficient," say the
adversaries of the proposed Constitution, "for the convention to adhere
to the republican form. They ought, with equal care, to have preserved the
FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states;
instead of which, they have framed a NATIONAL government, which regards the
Union as a CONSOLIDATION of the States." And it is asked by what
authority this bold and radical innovation was undertaken? The handle which
has been made of this objection requires that it should be examined with some
precision.
8 Without inquiring into the accuracy of the
distinction on which the objection is founded, it will be necessary to a just
estimate of its force, first, to ascertain the real character of the
government in question; secondly, to inquire how far the convention were
authorized to propose such a government; and thirdly, how far the duty they
owed to their country could supply any defect of regular authority.
9 First. In order to ascertain the real character of
the government, it may be considered in relation to the foundation on which it
is to be established; to the sources from which its ordinary powers are to be
drawn; to the operation of those powers; to the extent of them; and to the
authority by which future changes in the government are to be introduced.
10 On examining the first relation, it appears, on one
hand, that the Constitution is to be founded on the assent and ratification of
the people of America, given by deputies elected for the special purpose; but,
on the other, that this assent and ratification is to be given by the people,
not as individuals composing one entire nation, but as composing the distinct
and independent States to which they respectively belong. It is to be the
assent and ratification of the several States, derived from the supreme
authority in each State, the authority of the people themselves. The act,
therefore, establishing the Constitution, will not be a NATIONAL, but a
FEDERAL act.
11 That it will be a federal and not a national act, as
these terms are understood by the objectors; the act of the people, as forming
so many independent States, not as forming one aggregate nation, is obvious
from this single consideration, that it is to result neither from the decision
of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the
States. It must result from the UNANIMOUS assent of the several States that
are parties to it, differing no otherwise from their ordinary assent than in
its being expressed, not by the legislative authority, but by that of the
people themselves. Were the people regarded in this transaction as forming one
nation, the will of the majority of the whole people of the United States
would bind the minority, in the same manner as the majority in each State must
bind the minority; and the will of the majority must be determined either by a
comparison of the individual votes, or by considering the will of the majority
of the States as evidence of the will of a majority of the people of the
United States. Neither of these rules have been adopted. Each State, in
ratifying the Constitution, is considered as a sovereign body, independent of
all others, and only to be bound by its own voluntary act. In this relation,
then, the new Constitution will, if established, be a FEDERAL, and not a
NATIONAL constitution.
12 The next relation is, to the sources from which the
ordinary powers of government are to be derived. The House of Representatives
will derive its powers from the people of America; and the people will be
represented in the same proportion, and on the same principle, as they are in
the legislature of a particular State. So far the government is NATIONAL, not
FEDERAL. The Senate, on the other hand, will derive its powers from the
States, as political and coequal societies; and these will be represented on
the principle of equality in the Senate, as they now are in the existing
Congress. So far the government is FEDERAL, not NATIONAL. The executive power
will be derived from a very compound source. The immediate election of the
President is to be made by the States in their political characters. The votes
allotted to them are in a compound ratio, which considers them partly as
distinct and coequal societies, partly as unequal members of the same society.
The eventual election, again, is to be made by that branch of the legislature
which consists of the national representatives; but in this particular act
they are to be thrown into the form of individual delegations, from so many
distinct and coequal bodies politic. From this aspect of the government it
appears to be of a mixed character, presenting at least as many FEDERAL as
NATIONAL features.
13 The difference between a federal and national
government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to
consist in this, that in the former the powers operate on the political bodies
composing the Confederacy, in their political capacities; in the latter, on
the individual citizens composing the nation, in their individual capacities.
On trying the Constitution by this criterion, it falls under the NATIONAL, not
the FEDERAL character; though perhaps not so completely as has been
understood. In several cases, and particularly in the trial of controversies
to which States may be parties, they must be viewed and proceeded against in
their collective and political capacities only. So far the national
countenance of the government on this side seems to be disfigured by a few
federal features. But this blemish is perhaps unavoidable in any plan; and the
operation of the government on the people, in their individual capacities, in
its ordinary and most essential proceedings, may, on the whole, designate it,
in this relation, a NATIONAL government.
14 But if the government be national with regard to the
OPERATION of its powers, it changes its aspect again when we contemplate it in
relation to the EXTENT of its powers. The idea of a national government
involves in it, not only an authority over the individual citizens, but an
indefinite supremacy over all persons and things, so far as they are objects
of lawful government. Among a people consolidated into one nation, this
supremacy is completely vested in the national legislature. Among communities
united for particular purposes, it is vested partly in the general and partly
in the municipal legislatures. In the former case, all local authorities are
subordinate to the supreme; and may be controlled, directed, or abolished by
it at pleasure. In the latter, the local or municipal authorities form
distinct and independent portions of the supremacy, no more subject, within
their respective spheres, to the general authority, than the general authority
is subject to them, within its own sphere. In this relation, then, the
proposed government cannot be deemed a NATIONAL one; since its jurisdiction
extends to certain enumerated objects only, and leaves to the several States a
residuary and inviolable sovereignty over all other objects. It is true that
in controversies relating to the boundary between the two jurisdictions, the
tribunal which is ultimately to decide, is to be established under the general
government. But this does not change the principle of the case. The decision
is to be impartially made, according to the rules of the Constitution; and all
the usual and most effectual precautions are taken to secure this
impartiality. Some such tribunal is clearly essential to prevent an appeal to
the sword and a dissolution of the compact; and that it ought to be
established under the general rather than under the local governments, or, to
speak more properly, that it could be safely established under the first
alone, is a position not likely to be combated.
15 If we try the Constitution by its last relation to
the authority by which amendments are to be made, we find it neither wholly
NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate
authority would reside in the MAJORITY of the people of the Union; and this
authority would be competent at all times, like that of a majority of every
national society, to alter or abolish its established government. Were it
wholly federal, on the other hand, the concurrence of each State in the Union
would be essential to every alteration that would be binding on all. The mode
provided by the plan of the convention is not founded on either of these
principles. In requiring more than a majority, and principles. In requiring
more than a majority, and particularly in computing the proportion by STATES,
not by CITIZENS, it departs from the NATIONAL and advances towards the FEDERAL
character; in rendering the concurrence of less than the whole number of
States sufficient, it loses again the FEDERAL and partakes of the NATIONAL
character.
16 The proposed Constitution, therefore, is, in
strictness, neither a national nor a federal Constitution, but a composition
of both. In its foundation it is federal, not national; in the sources from
which the ordinary powers of the government are drawn, it is partly federal
and partly national; in the operation of these powers, it is national, not
federal; in the extent of them, again, it is federal, not national; and,
finally, in the authoritative mode of introducing amendments, it is neither
wholly federal nor wholly national.
PUBLIUS
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