Federalist 33 – Hamilton

In Federalist 33, Hamilton tackles the issue of the necessary and proper clause.  Before delving into this essay, it’s worth noting that this clause would be the impetus behind the first major debate between the two principle authors of the Federalist Papers.  One of Hamilton’s first proposals as Secretary of the Treasury was the creation of a National Bank, a measure opposed by Madison.  Hamilton’s defense of the Bank revolved principally around a rather generous interpretation of the necessary and proper clause, something to keep in mind while reading this paper.

Hamilton largely dismisses the (in his mind) overwrought criticism of this clause, stating that it is merely declaratory.

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.

Hamilton engages in some lawyerly parsing in order to buttress this opinion.

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 proper means of executing such a power, but necessary and proper laws? 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?

If all the necessary and proper clause does is state the obvious, then why was it even inserted into the Constitution?

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.

In other words, it’s a measure of protection against state usurpation of Federal power.

I note in passing that Hamilton’s logic is suspicious considering his arguments against a Bill of Rights.  Hamilton opposed a Bill of Rights because, in his mind, it was an unnecessary addition to a Constitution that did nothing to infringe upon the rights people most cherished.  Here, Hamilton argues that the “necessary and proper clause” is really just stating the obvious, yet he defends it partially on the grounds that it provides “greater caution,” an argument he rejects when it comes to the Bill of Rights.  Make of that what you will.

So who gets to make determinations on the propriety of laws?

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.

We seemed to have just this discussed this subject on this very blog.  Hamilton is actually fairly vague when stating who he believes should judge on the propriety of laws. He answers first that the “national government” must judge its own actions.  But who in the federal government?  He does not mention the Court, nor does he name Congress.  This is left fairly open-ended and subject to interpretation.  In the end, he seems to suggest that the “people” have the final say, but again, this is somewhat vague.  Voting citizens do not appear to have the power to repeal laws.  They can express their anger over certain laws by voting out of office those who put them into effect, but this is not quite the same as having some sort of positive power of judicial review.

Finally, Hamilton discusses the “Supremacy Clause,” and again he argues that it is simply a declaratory clause.

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.

Hamilton hopes to assuage fears about this clause by asserting that, in essence, only good laws are the supreme law of the land.  This is also slightly odd as it can be used as an argument to justify nullification.  After all, couldn’t a state simply declare a law to be to unjust and therefore not supreme?  Hamilton would likely counter that no, only the federal government could make such a declaration.  And who in the federal government has the authority to make such a declaration?  He does not specify.

Advertisement