Antifederalist No. 32: FEDERAL TAXATION AND THE DOCTRINE OF IMPLIED POWERS

Antifederalist No. 32 FEDERAL TAXATION AND THE DOCTRINE OF IMPLIED POWERS (PART I)

A powerful rebuttal of Hamilton, the logic of Brutus can be found in a supreme Court decision of 1819, McCulloch v. Maryland. Taken from "Brutus" fifth essay, The New-York Journal of December 13, 1787.

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 lst 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, almanacks, 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 the 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 with 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.

The more I study American history, the more firmly I come to believe that the Constitution itself was a BIG mistake. A tragic error.

Conservatives romantically cling to the Constitution despite all the evidence amassed over 200 years of experience. They laud the Federalist papers, those essays that, when scrutinized coldly and without romantic attachment, reveal themselves to be monuments to error and miscalculation--if not worse.

As stated in the header of this essay, by 1819, some of the dire predictions of the anti-federalists had already come to pass. Chief Justice Marshall--appointed by George Washington---in 1819 interpreted the "Commerce Clause" in broad terms, paving the way for an unrestrained federal leviathan. This same Marshall had some 15 years earlier declared the Supreme Court the final decider and interpreter of Constitutionality.

The anti-federalists were right. They were right about the federal power to tax. About the dangers of the federal judiciary. About the impossibly broad language of "all laws necessary and proper", "promote the general welfare", etc. They were right that what the Constitution created was a federal beast that would obliterate the power of the states, lord over every detail of life, and lead to civil war.

The point I'm trying to make is that the conservative movement, to the extent that it wishes to "return to the Constitution" and "founding principles" is on a fool's errand. Not simply because the battle to keep the national government contained was lost long ago, but because the true founding principles, the Spirit of 76, LOST when the Constitution was ratified.

I don't know if it's possible for conservatives to give up their romance with the Constitution, with the "founding fathers." Probably not. As so here we are, playing around at the margins.

I'll try to post more essays from the time of the founding that demonstrate how well understood the perils of the national government were to those who OPPOSED it at the time. George Mason and Patrick Henry are heros. Madison, Hamilton, and the rest of the Constitutional Convention, truth be told, are the GOATS.

In so extensive a republic, the great officers of government would soon

become above the controul of the people, and abuse their power to the

purpose of aggrandizing themselves, and oppressing them. The trust committed

to the executive offices, in a country of the extent of the United-States,

must be various and of magnitude. The command of all the troops and navy of

the republic, the appointment of officers, the power of pardoning offences,

the collecting of all the public revenues, and the power of expending them,

with a number of other powers, must be lodged and exercised in every state,

in the hands of a few. When these are attended with great honor and

emolument, as they always will be in large states, so as greatly to interest

men to pursue them, and to be proper objects for ambitious and designing

men, such men will be ever restless in their pursuit after them. They will

use the power, when they have acquired it, to the purposes of gratifying

their own interest and ambition, and it is scarcely possible, in a very

large republic, to call them to account for their misconduct, or to prevent

their abuse of power.

Brutus, 18 October 1787

Don't throw the baby out with the bathwater. The original Constitution held against the onslaught until it was sabotaged by a combination of Supreme Court interpretation and the 14th Amendment. It took that much (actually unratified and fraudulent) power to cobble together an effective neutralization of the Constitution, and even then, and after a hundred years of twisting and lying, the entirety of the fraud still hangs on the single thread of "presumption."

The Founders knew the evil they were up against, and warned that the Constitution of Negative Rights would have to be deeply understood in order to be adequately defended. Which is why the Left has invaded academia, to destroy the education necessary for a free people to be able to defend their freedom. But taken at face value, the original Constitution is still a monstrously strong bulwark against tyranny, and has not been defeated - only buried by lies and forceably ignored by a deviously sabotaged ignorant citizenry.

None of which matters in the least, because the perversion DID happen. The previous poster is correct---the Anti-Federalists WERE right, and in such detail that the accuracy of the predictions are frightening.

Whether something "matters" or not is subject to reflections against a standard. The Founders endeavored not only to create a "country," but also a mechanism which would defeat the attacks of evil.

One could say, if the attacks of evil were successful, then the Founders failed. But no one can be held to a standard higher than that which they can address. The Founders sealed the breach from their standpoint. It took an addition to the Constitution - the 14th Amendment - plus a Supreme Court ruling, to establish the merest thread upon which treason against the Founders could be maintained. The success of that extraordinary illegitimate effort is not their fault.

The question, therefore, that we are left with, is not whether we can understand what has been done. Very brave and even brilliant people have exposed the deceit. But what now? Who will step forward - and with what support? The usurpers of the Constitution are not fools - they smash certainty, destroy education, fill millions of ears with lies, and reward cowardice. So the endgame is already thrown and the traitors fill their goblets with wine and vomit their laughter in glee.

The question is, who will resist this perverse, demonic hell with the truth?

The original Constitution held against the onslaught until it was sabotaged by a combination of Supreme Court interpretation and the 14th Amendment.

The Supreme Court that THEY created. When I consider that the first "sabotage" by the Supreme Court took place in 1803, and was authored by one of the framers--John Marshall--I have difficulty writing it off as a mulligan.

The Founders knew the evil they were up against, and warned that the Constitution of Negative Rights would have to be deeply understood in order to be adequately defended.

You have to step outside of it for a minute. Seriously. I realize this is just an intellectual exercise at this point, but what is at issue in my mind is, why create a strong national government? What the framers were "up against" was the Frankenstein monster THEY CREATED.

They weren't even authorized to create it. They were supposed to merely fix the Articles of Confederation. There was no need for what they created. They went too far.

Every defender of the Constitution I encounter acknowledges it hasn't worked, but comes back with some form of what I'll call the Scooby Doo defense--it would have worked if it hadn't been for....the people?

No. You can't say a gubmint designed to be run by people was fine except for the people. They created too powerful a government. They made awful errors that were known at the time! Interstate commerce, necessary and proper, general welfare, etc. The opponents of the Constitution warned of the folly and absolute power that would stem from those phrases. It's not as if it was unknown at the time.

"The success of that extraordinary illegitimate effort is not their fault."

The fact that another point of view existed contemporaneously and was denied says it "is" their fault. They were too optimistic. That the Anti-Federalists description of what the downfall would be is so uncannily accurate proves which of the two views got it rignt.

"So the endgame is already thrown and the traitors fill their goblets with wine and vomit their laughter in glee."

Eventually, the socialists will carry things too far, and enough people WILL wake up to the danger.

"The question is, who will resist this perverse, demonic hell with the truth?"

I suspect that the "triggering event" (no pun intended) this time around will be the same as the last time---an attempt by the central government to disarm the people. The only question will be where the next "Lexington and Concord" will take place. All those folks stockpiling guns and ammo are voting "nay".

The Founders endeavored not only to create a "country,"

That was the first and biggest mistake. They took a conferation of "countries", and turned it into one big Fedzilla. They are wholly to blame for it. They weren't even authorized to do so. They were merely supposed to make alterations to the existing confederation of states.

One could say, if the attacks of evil were successful, then the Founders failed.

The results are in.

It took an addition to the Constitution - the 14th Amendment - plus a Supreme Court ruling, to establish the merest thread upon which treason against the Founders could be maintained. The success of that extraordinary illegitimate effort is not their fault.

The Marshall court--the first Supreme Court--appointed by Washington, began the mischief. By the time of McCulloch v Maryland in 1816 we were already screwed. The seeds had already been sewn. And since it is the framers who created the SCOTUS, they are most definitely at fault. There was no need for a national government with supreme power residing in an unelected group of judges. They created it. They own it.

Ideally, the step forward is to abandon the Constitution and national government. In reality, the step forward will be to continue loping towards total statism under the yoke of a virtually limitless national government.

And since it is the framers who created the SCOTUS, they are most definitely at fault. There was no need for a national government with supreme power residing in an unelected group of judges. They created it. ...They are wholly to blame for it. They weren't even authorized to do so. They were merely supposed to make alterations to the existing confederation of states. ...They own it. ...Ideally, the step forward is to abandon the Constitution and national government.

Your theory of the complete failure of the Constitution is unique, to say the least. It's hard to imagine being able to look at the last 230+ years of world history and call the United States a complete failure, but hey, whatever floats your boat.

And as far at the Supreme Court being unnecessary, once again, there is arguing that it has overstepped it's bounds (with which I agree) and arguing that it's original purpose was unnecessary, which I have to dismiss for cause. What exactly would you have used in it's stead for it's original purpose?

Finally, your call to not only abandon the Constitution, but also national government, is naive beyond belief. Only a national government provides the coordinated power necessary to survive against other... national governments. It's like arguing against guns by quoting all of their inherent dangers, without acknowledging the fact that criminals use guns. Just as the criminals are the real problem, so are other nation-states, who will take over your little confluences of non-national people unprotected by either size or a fundamental guiding doctrine of negative rights to curb their own little fiefdoms.

The Founders didn't "authorize" themselves - they submitted their work to the States for ratification. And the problem they faced was how to cripple the government's power against the people as much as possible while still enabling it against foreign national threats. In the entire known history of the world, their creation of a doctrine of negative rights has proven to be breathtakingly brilliant and successful, but even they warned that no government can survive the moral corruption and ignorance of it's people - it's simply not within the range of any government to prevent that.

But arguing for the destruction of national government altogether is an equally untenable, and grossly unrealistic, counter-response to the abiding threat of totalitarian invasion (under whatever name).

The Anti-Federalists were dead-on, I agree, but compromise with the Federalists was a necessary evil in order to create a nation, which was required for sheer size. It is simply inescapable that the country was created not only to secure internal rights, but also be able to effectively defend itself from enormously powerful foreign threats. It was an abiding pressure that never allowed the full acceptance of the Anti-Federalist freedoms, and that has plagued the country since it's inception.

But since the Anti-Federalist negative rights are truly unique in the world, I believe the Federalist restrictions are secondary to them in estimation. In other words, the success of the country is that negative rights have been able to exist at all, not that they've been under attack by Federalist expansion (which, I think, was always a given).

I believe its "original purpose" was faulty. Some excerpts on the subject from AntiFederalist No. 81 (the existance of these documents is important, because it obliterates this notion that the abuses we have seen since the adoption of The Constitution were somehow unforseen or unimaginable to the founders.)

Here you go:

Perhaps the judicial power will not be able, by direct and positive decrees, ever to direct the legislature, because it is not easy to conceive how a question can be brought before them in a course of legal discussion, in which they can give a decision, declaring, that the legislature have certain powers which they have not exercised, and which, in consequence of the determination of the judges, they will be bound to exercise. But it is easy to see, that in their adjudication they may establish certain principles, which being received by the legislature will enlarge the sphere of their power beyond all bounds.

snip

From these observations it appears, that the judgment of the judicial, on the constitution, will become the rule to guide the legislature in their construction of their powers. What the principles are, which the courts will adopt, it is impossible for us to say. But taking up the powers as I have explained them in my last number, which they will possess under this clause, it is not difficult to see, that they may, and probably will, be very liberal ones. We have seen, that they will be authorized to give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter.

snip

If it be further considered, that this constitution, if it is ratified, will not be a compact entered into by states, in their corporate capacities, but an agreement of the people of the United States as one great body politic, no doubt can remain but that the great end of the constitution, if it is to be collected from the preamble, in which its end is declared, is to constitute a government which is to extend to every case for which any government is instituted, whether external or internal. The courts, therefore, will establish this as a principle in expounding the constitution, and will give every part of it such an explanation as will give latitude to every department under it, to take cognizance of every matter, not only that affects the general and national concerns of the union, but also of such as relate to the administration of private justice, and to regulating the internal and local affairs of the different parts.

snip

As it sets out in the preamble with this declared intention, so it proceeds in the different parts with the same idea. Any person, who will peruse the 5th section with attention, in which most of the powers are enumerated, will perceive that they either expressly or by implication extend to almost every thing about which any legislative power can be employed. If this equitable mode of construction is applied to this part of the constitution, nothing can stand before it. This will certainly give the first clause in that article a construction which I confess I think the most natural and grammatical one, to authorise the Congress to do any thing which in their judgment will tend to provide for the general welfare, and this amounts to the same thing as general and unlimited powers of legislation in all cases.

snip

It is obvious that these courts will have authority to decide upon the validity of the laws of any of the states, in all cases where they come in question before them. Where the constitution gives the general government exclusive jurisdiction, they will adjudge all laws made by the states, in such cases, void ab inilio. Where the constitution gives them concurrent jurisdiction, the laws of the United States must prevail, because they are the supreme law. In such cases, therefore, the laws of the state legislatures must be repealed, restricted, or so construed, as to give full effect to the laws of the union on the same subject. From these remarks it is easy to see, that in proportion as the general government acquires power and jurisdiction, by the liberal construction which the judges may give the constitution, those of the states will lose their rights, until they become so trifling and unimportant, as not to be worth having.

snip

That's enough to chew on for now. You see, the SCOTUS is tied to the Constitution that created it, and together, it was so amazingly clear to see at the time for those with eyes to see, they form centralized TYRANNY.

I'm so sick of all this talk of the framers' intent. Intentions and a dollar get you a cup of coffee. Look at what they created. And don't tell me "if only it had been followed." Look at the criticisms from the time it was adopted. It was all out there.

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