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