Federalist 32 – Hamilton

On the surface, Federalist 32 is a relatively minor work within the collection of essays written by Hamilton and Madison.  Yet this piece offers readers a very good insight into Alexander Hamilton’s mode of constitutional interpretation.

This essay is largely concerned with the concurrent taxation powers of the federal and state governments.  Hamilton rebuffs the idea that the states would be deprived of most of their taxing power, arguing instead that the Constitution leaves the states with the power tax most anything except where expressly prohibited.

He begins the essay with a subject that would be debated for years by Civil War historians.

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.

As we’ve seen before, Hamilton argues on behalf of state sovereignty.  This would shock some modern readers accustomed to the narrative that Alexander Hamilton was some sort of consolidationist bent on destroying the states.  Not so.  He affirms here and elsewhere that the states indeed retain a large measure of sovereign authority, with certain exceptions as outlined here:

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.

Here is where we get a glimpse at Hamilton’s mode of constitutional interpretation.  To some degree he seems to offer up what we could a strict constructionist interpretation.  Federal supremacy over state authority exists only when expressly laid out in the Constitution.  On the other hand, federal supremacy can be assumed also when mutual authority would be, as Hamilton labels it, contradictory and repugnant.  In other words, there would be occasions where federal supremacy would be assumed, even if not specifically laid out in the constitutional text.  Therefore, where state and federal authority collide, the former must give way to the latter.

In the case of specific delegation of of exclusive federal authority, Hamilton highlights the clause giving Congress exclusive jurisdiction over the federal district (Washington, DC).  He also brings up the power given to the federal government to lay and collect taxes, duties, imposts and duties, and that the power of the states to lay imposts and duties is subject to Congressional approval.  In terms of potentially contradictory powers, Hamilton brings up the issue of naturalization.

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.

Though there is no precise prohibition on the state regulation of naturalization, such a prohibition is implied because of the way in which the Constitution addresses the issue.

Another insight into how Hamilton interprets the Constitution is contained in his discourse on imports and exports.

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.

He goes on to explain the legal rational behind this.

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.

Because the Constitution clearly restricts the states in one method of taxation, yet is silent as regards to all other forms of taxation, it is thus inferred that the states retain coequal authority when it comes to all other methods of taxation.  The Constitution’s silence is thus an affirmation of state power.  This method of interpretation makes sense when one considers how Hamilton viewed the Constitution.  The Constitution was an express grant of authority to the federal government on a few clearly defined matters.  On matters unaddressed by the Constitution, the states retained a broad grant of power.  In other words, state sovereignty was unaffected unless there was an express or highly implicit grant of exclusive federal authority.  Future generations might play games with the implicit part of that equation, but Hamilton was serious about confining the federal sphere of influence to a fairly narrow spectrum of issues.

Hamilton concludes:

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.

Again, Hamilton lays out an argument on behalf of a certain mode of constitutional interpretation.  Though concerned with a seemingly minor political issue, this makes Federalist 32 one of the more significant Federalist Papers for those concerned with understanding how the Framers interpreted the document they helped create.

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One Comment

  1. It is interesting that Hamilton, as you write, offers up a strict construction of the constitution in the several of the Federalist Papers but it could be argued that he is the “father” of a loose interpretation of that document as we know from hindsight. The reciprocal is true about his views of America’s first government. In Federalist 21 he strictly constructs the Articles of Confederation and somewhat condemns a loose interpretation of it, to illustrate its limitations. At the risk of sounding like a modern deconstructionist could Hamilton be trying to play to certain groups?
    Just a thought. (Great series of posts by the way.)

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