Federalist 33
Article I, section 8 of the Constitution states the powers of Congress. The framers of the Constitution assumed that Congress was the 800 pound gorilla in the governing room and for that reason placed more limits on Congressional power than on the other two branches. One way of limiting Congressional power was to strictly enumerate the powers that Congress had, and Federalist and bit-federalist alike assumed that if the power was not listed in the Constitution, then Congress didn’t have the authority to act.
This strict detailing of Congressional power became something of an issue during debate over the Affordable Care Act. Critics of the ACA wondered from where Congress received its power not only to dispense health insurance but to require the purchase of it. “Where in the Constitution,” the critics wondered, “is any such grant given.” When asked that question point blank by a reporter, Speaker Pelosi replied that she did not regard it as a serious question. I suppose the most charitable way of interpreting that response is that Congress has violated those restrictions so often and for so long that it seems puckish to raise the question at all.
It was, however, a very serious question to those who wrote the Constitution. Indeed, James Madison, one of the Constitution’s main architects, vetoed a bill that would have allowed for federal funding of roads and canals on the grounds that the Constitution gave Congress no such authority. The fact that he favored the policy made no difference: the President had an obligation to uphold the Constitution. Certainly Congress has authority to regulate commerce among the several states, but how does that translate to commanding commerce by individuals?
When discussing the taxation power, Hamilton knew he had run into some knotty Constitutional limits. Again, the Constitution does not (for the most part) say what government cannot do, it says what government can do, and if it doesn’t say it, government may not do it. The doctrine of concurrent powers, which Hamilton refers to again in Federalist 33, threatened to usurp the authority of the states by using the taxation power to bankrupt them, at least potentially. Hamilton tried to reassure the Constitution’s critics that the doctrine of concurrent power was the best they were going to get — it was either going to be that or their taxation authority would be completely subordinate to the nation’s.
The Anti-federalists found little comfort in this remonstrance. Even if the doctrine of concurrent power — itself implied in the Constitution in much the same way the doctrine of the Trinity is implied in the Bible — protected the states, the Constitution contained two nasty little clauses that could potentially upend the delicate effort at dual sovereignty.
The first was contained in Article I section 8 itself. After enumerating all the specific powers of Congress, the writers of the Constitution added that Congress would have the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” In all their invectives against the Constitution, the criticism of this clause held a special place for the Anti-federalists. Brutus in his first essay immediately drew attention to the potential menace of this clause. What made a law “necessary” and who was to decide?
In the immediate aftermath of ratification the word sparked hot debate. Did necessary mean “absolutely essential to” or did it mean “conducive to”? The Anti-federalists argued for the more restrictive meaning while Hamilton argued for the expedient view, expressed most fully in his defense of the creation of a national bank. The more restrictive view may be understood this way: The Constitution gives Congress the power to coin money, but not to purchase metals. But since there is no way to coin money without metal the power to procure metal must be an implied power. Since there is a way to coin money without creating a national bank, that institution could not be justified with reference to the "necessary and proper clause," as Hamilton was to do later. The extent of the doctrine of implied powers would thus become a central point of contention.
As I said, the Anti-federalists argued for the narrow interpretation while Hamilton argued for a more capacious one that would expand the central government’s implied powers. The Constitution may not have said that Congress could create a central bank, but inasmuch as it made the regulation of commerce easier, Hamilton claimed, it seemed implied. After all, he argued, in Article I section 10 the Constitution qualifies the word “necessary” with the word “absolutely.” Why the qualifier unless the section 8 use suggested a lower threshold of necessity? Without the narrower interpretation, critics worried, the words “necessary and proper” (this is often referred to as “the elastic clause”) could keep expanding federal powers indefinitely, Congress simply asserting that it regarded passage of any law as “necessary.”
What was at stake? The second part of the argument that Hamilton addressed in Federalist 33 concerned Brutus’s objection to the Supremacy Clause of the Constitution in Article VI: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Between the two clauses, Brutus believed, the federal government would be able to subsume and ultimately usurp the authority of the state governments altogether, particularly in its use of the concurrent power of taxation.
How far the clause in the 8th section of the 1st article may operate to do away all idea of confederated states, and to effect an entire consolidation of the whole into one general government, it is impossible to say. The powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing almost any law. A power to make all laws, which shall be necessary and proper, for carrying into execution, all powers vested by the constitution in the government of the United States, or any department or officer thereof, is a power very comprehensive and definite [indefinite?], and may, for ought I know, be exercised in a such manner as entirely to abolish the state legislatures. Suppose the legislature of a state should pass a law to raise money to support their government and pay the state debt, may the Congress repeal this law, because it may prevent the collection of a tax which they may think proper and necessary to lay, to provide for the general welfare of the United States? For all laws made, in pursuance of this constitution, are the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of the different states to the contrary notwithstanding. --By such a law, the government of a particular state might be overturned at one stroke, and thereby be deprived of every means of its support.
Hamilton believed that Brutus had painted his concerns “in the exaggerated colours of misrepresentation.” Allowing the narrower interpretation of the “necessary and proper clause” he later rejected, Hamilton suggested the obviousness of its inclusion in Article 8: if Congress has a power, it must be able to do what is absolutely required to exercise that power. Hamilton argued that the inclusion of the clause was a redundancy in the document. So why have it in there at all?
Because, Hamilton argued, the great flaw in America’s emerging system was that the states retained too much authority. Knowing that the states would constantly threaten to curtail federal power the writers of the Constitution saw fit to put an extra guardrail in place protecting federal power.
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.
This claim played right into the fears of the Anti-federalists, who asked the obvious next question: who was to judge whether the federal government had gone too far, or become too lax, in its construction of the “necessary and proper” clause? Wouldn’t that have to be the federal government itself, and wouldn’t it always, in its enduring conflict with the states, assert its own interests? Hamilton referred the reader to the plain meaning of the clause, assuming once again its more narrow interpretation. He went further, however. Conceding that the federal government would have to be the final interpreter he insisted that the rejection of such interpretations would have to come from “the people” themselves, and not the states.
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.
Note the dissolution of the states as intermediaries between the people as a collective mass and the federal government. What measures might the people take? How extreme would they have to be? Revolution? A new Constitutional Convention? Would they have measures available to them proportional to the offense, other than waiting a couple of years for another election so they could remove the offenders?
Brutus foresaw the less obvious but more insidious aspect of Hamilton’s approach: the increase in federal power would be incremental and thus likewise the diminishing of state power. The people, dispersed and atomized, would hardly be in a position to know what was happening, particularly since the federal seat of authority would be so distant from them. The federal government’s gradual accumulation of power remained Brutus’s central concern, particularly given what we know about human beings, which is that they do not readily give up a power once acquired, for it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way. This disposition, which is implanted in human nature, will operate in the federal legislature to lessen and ultimately to subvert the state authority, and having such advantages, will most certainly succeed, if the federal government succeeds at all. It must be very evident then, that what this constitution wants of being a complete consolidation of the several parts of the union into one complete government, possessed of perfect legislative, judicial, and executive powers, to all intents and purposes, it will necessarily acquire in its exercise and operation.
Over time the federal government would come to regard to the states as speed bumps in its effort to accumulate and concentrate power, as “clogs upon the wheels of government” that would have to be removed. Hamilton found such rhetoric alarmist, slyly reassuring Brutus and others that those who operated the federal government would never possess such motivations, and in any case the sentiments and the attachment of the people wouldn’t allow for it — unless, he would allow later, the federal government was simply better administered than that of the states. Brutus and Hamilton did seem to agree that the attachments of the people were fungible, but they disagreed about the desirability of the outcome. Brutus believed that a republic could only sustain itself if people attached themselves to the near-at-hand and participated directly in the governance of their own lives. Hamilton had other plans.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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