A Disease in the Public Mind
A New Understanding of Why We Fought the Civil War
By Thomas Fleming

The authorâ€s claim that he offers a “new understanding” seems overblown to this reviewer. Truth to tell, there is little in this book about the American Civil War that hasnâ€t been covered by other historians. Flemingâ€s contribution is more a matter of emphasis than originality.

That having been said, this is an interesting and readable book. In the course of Flemingâ€s  narrative he casts light on some little discussed related events, one of which will be addressed later in this review.

The author begins by citing facts known to those familiar with the period but may not be known to others. In any case they bear repeating because they underscore the horrific dimensions of the conflict.

Historians believe the combined Union and Confederate toll was at least 750,000 but it could be as high as 850,000 because of the difficulty of arriving at an accurate count of Confederate dead. “Confederacies records vanished with their defeat.”

This much is certain: more soldiers died in the four year struggle than the nation lost in all her previous and future wars combined.

Fleming puts this in comparative terms.

What makes these numbers especially horrendous is the fact that Americaâ€s population in 1861 was about 31 million. In 2012, U.S. population is about 313 million. If a similar conflict demanded the same sacrifice from our young men and women today, the number of dead might total over 10 million.

The enormity of the tragedy is compounded by the fact that America is the only country in the world that fought a war to end slavery. Other nations with large slave populations ended slavery with relatively little bloodshed.

Especially perplexing is that a mere 316,632 southerners owned slaves – 6 percent of the total white population of 5.582,322 and only 46,214 of these owned 50 slaves or more. “Why, then, did the vast majority of the white population unite behind these slaveholders in a fratricidal this war” that would take the lives of over 300,000 of their sons “to preserve an institution in which they apparently had no personal stake?” The authorâ€s answer is the title of his book.

He defines “A Disease of the Public Mind” as:

…fixed beliefs that are fundamental to the way people participate in the world of their time. A disease of the public mind would seem to be a twisted interpretation of political, or economic, or spiritual realities that seize control of thousands or even millions of minds.

Fleming argues that southern radicals and fanatic northern abolitionists so inflamed the public mind that the Civil War was the inevitable result. This thesis rests on the assumption that the war might have been avoided if not for these agitators and slavery might have eventually ended without a war. These seem dubious assumptions at best.

The invention of the cotton gin, as the author notes, increased the economic importance of slavery. The 1808 U. S. and British ban on importing or exporting slaves increased the monetary value of the slaves themselves. Equally important, southern political power depended on the Three-fifths Compromise made by the Continental Congress in 1783. The Compromise was an agreement to count three-fifths of a state’s slaves in apportioning Representatives, Presidential electors, and direct taxes. From 1800 to the 1850s, the three-fifths rule was instrumental in electing slave-holding presidents. But, as northern states grew more rapidly, southern political power increasingly depended upon the admission to the Union of new slave-holding states. Morality aside, northern political interests conversely resided in blocking their admission.

William J. Cooper in his book “We Have the War Upon Us” (reviewed here) lays out the political exigencies that caused the Civil War. He concludes that, contrary to what most Americans today believe, although the war ended slavery it was not fought for that reason. Cooperâ€s book is about the men whose decisions, action or inaction culminated in the Civil War.

Fleming makes his case by describing the “disease of the public mind” that extremists on both sides of the slavery issue perpetuated.

As the number of slaves equaled or exceeded the white population in southern states, white southerners became fearful of a slave rebellion. Radical abolitionist William Lloyd Garrison and others played on that fear, repeatedly warning that unless the slaves were immediately freed, the South would be plunged into a bloody race war. Garrison and others gave John Brown, a lying, murdering, self-aggrandizing madman, hero status in the North. In addition, Garrison vilified southerners. Labeling them cruel, decadent and lazy. Fabricated stories in abolitionist newspapers “proved” these accusations.

Events in Saint-Domingue (now Haiti) lent credence to Garrisonâ€s frightening prognostications of race war. When the Jacobins took control of the French National Assembly in 1797, they issued a declaration freeing all the slaves in Franceâ€s overseas dominions. When word reached Saint-Domingue, a slave uprising destroyed hundreds of sugar, coffee and indigo plantations. Black leader Toussant Louverture preached equality between blacks and whites, declared himself ruler for life, and began creating a multiracial society.

However, in 1799, Napoleon Bonaparte seized power in Paris and set about restoring the French colonial empire. He sent French diplomat Louis-André Pichon to President Jefferson to ask about Saint Domingue.

Jeffersonâ€s reply exceeded Pichonâ€s most sanguine hopes. The new president urged Pichon to tell his government that America was eager to help restore French rule in Saint-Dominque. He welcomed Franceâ€s proposal to send an army to crush the black rebels. ‘Nothing will be easier than [for us] to furnish your army and fleet with everything to reduce Toussant to starvation,†Jefferson said.

Unknown to Jefferson, the larger purpose of†the expedition was to get Spain to retrocede the territory of Louisiana to the French. As soon as French supremacy was restored in Saint-Domingue, Bonaparte intended to send his army to New Orleans.

Louisiana would supply Saint-Domingue and the other French West Indian Islands with food at cut-rate prices, eliminating the need to buy from the Americans.”

The upheaval in Saint-Domingue caused a number of white French planters to flee to America where they recounted their harrowing experiences. Rumors circulated in the southern states that American slaves, knowing of the events in Saint-Domingue, were plotting similar uprisings. A thwarted slave revolt in Virginia intensified Jeffersonâ€s fear that unless the successful rebellion in Saint-Domingue was ended, it would inspire more slave uprisings in the South.

The French prevailed and imprisoned Toussant, but Bonaparte made a ruinous blunder. He decided to re-impose slavery on Saint-Domingue and other French islands. The blacks rose in fury, bested the French and undertook the extermination of the white population. They renamed the island Haiti.

Jefferson had helped to create a wrecked and desolate island in the grip of an illiterate, half mad despot. Haitiâ€s blood soaked birth made the ultimate meaning of the term race war an unforgettable nightmare. It was soon on its way to becoming “a disease of the public mind” in the southern states.

When the news of the slaughter reached Jefferson he determined that Haiti had to be “as isolated as possible from the United States of America.” A few months after the slaughter Jeffersonâ€s son-in-law introduced a resolution in the House of Representatives calling upon the United States to refuse to recognize Haitiâ€s independence. “Everyone knew this was a message from the president. It passed overwhelmingly.”

Why did President Jefferson manage to escape without a word of reproach or criticism, both in the North and the South, for the awful fate he had helped to impose on Haiti?  Few people beside James Madison knew about the presidentâ€s approval of Napoleonâ€s invasion. The public blame fell on France.

Even if the whole truth were known, there is another reason why most Americans would probably have found little fault with the president: the Louisiana Purchase.

Bonaparte, in desperate need of money for his war machine, sold Louisiana to the United States. In July 1803, 868,000 square miles, a third of the continent was purchased by the United States for $15 million.

“The acquisition guaranteed Thomas Jeffersonâ€s popularity for decades to come. In 1804 he was reelected by an overwhelming majority.”

Thomas Jeffersonâ€s noble sentiments in the Declaration of Independence and the existence of slavery were irreconcilable as many of the Founders realized, including Jefferson. For all of Jeffersonâ€s reported agonizing over slavery he left himself a convenient out in his insistence that blacks were an inferior race and poorly suited for life among whites.

Alexander Hamilton disagreed. In a letter to John Jay, urging support of a plan to enroll blacks to fight in the Revolutionary War, Hamilton declared such claims were “founded neither in reason nor experience.” but on white reluctance to part with “property of so valuable a kind.”

Despite the condemnation of some historians, there was a limit to how far the Founders were able to go and keep the South from forming a separate nation. A series of political compromises in subsequent years attempted to placate the southern states while preserving the Union. Ultimately, in the months immediately preceding the outbreak of hostilities, Congress ran out of compromises.

Flemingâ€s argument — that fanatics in the North and South drove the nation into an avoidable war — doesnâ€t add up nor does the notion that slavery would have eventually withered away. How long that withering might have taken and what its effects would have been on future generations of blacks and whites, and on the nation as a “beacon of freedom in the world” are issues Fleming does not explore.

The title phrase in Flemingâ€s book has a rich patrimony. In 1859 James Buchanan blamed John Brownâ€s recklessness on “an incurable disease in the public mind.” Lincoln also invoked the “public mind” when he accused the South of “debauching the public mind.” Adlai Stevenson, Democrat presidential candidate in 1952 and 1956, declared: “Those who corrupt the public mind are just as evil as those who steal from the public purse.”

Stevensonâ€s condemnation has special meaning in our time.  The disease that infects the public mind today is that economic equality is more important than freedom. In the present case, the evil includes stealing from the public purse.

Concerning the General Power of Taxation (continued)

To the People of the State of New York:

WE HAVE seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views. If it should be objected that we have seen other descriptions of men in the local legislatures, I answer that it is admitted there are exceptions to the rule, but not in sufficient number to influence the general complexion or character of the government. There are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all; and I trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of State legislation; but occasional instances of this sort will not render the reasoning founded upon the general course of things, less conclusive.

The previous paper  demonstrated that, regardless of the number of representatives designated, the different interests and views of the various classes of the community will be represented almost entirely by proprietors of land, of merchants, and of members of the learned professions.  These individuals will adequately represent all of the community’s different interests.  Should someone say that local legislatures have been known to include people from other groups than these, we would simply say that there is an exception to every rule, but by and large these exceptions are not prevalent enough to significantly influence the general complexion or character of the government..  There are smart people in every walk of life who will rise up in spite of their situation.  They will enjoy the success due to them and should. The door of opportunity should be open to everyone.  Thus I would expect to see such exceptions spring up in the federal government as they have in States.  But such exceptions don’t change the fundamental truth of the reasoning herein.

The subject might be placed in several other lights that would all lead to the same result; and in particular it might be asked, What greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? It is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. But I forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency.

We might construct any number of other situations, but ultimately they would boil down to the same result.  For instance, one might ask if the shared interests of the carpenter and blacksmith, or the linen manufacturer and stocking weaver, aren’t of more significance than those of the merchant with any of them.  To which we would remind the reader, that the rivalries between different branches of craftsmen and manufacturers are as contentious as any between any groups in labor and industry.  Unless you were to have huge numbers of representatives, there would be no way to completely account for all of them.  Such a large body of representatives would never be able to get anything done in a practical sense.  I think this argument about representation has been sufficiently settled.

There is another objection of a somewhat more precise nature that claims our attention. It has been asserted that a power of internal taxation in the national legislature could never be exercised with advantage, as well from the want of a sufficient knowledge of local circumstances, as from an interference between the revenue laws of the Union and of the particular States. The supposition of a want of proper knowledge seems to be entirely destitute of foundation. If any question is depending in a State legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired? No doubt from the information of the members of the county. Cannot the like knowledge be obtained in the national legislature from the representatives of each State? And is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information? Is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each State; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry?

And so we will move on to another objection which has been bandied about.  Some have said that the Congress would be unable to effectively create revenue laws because of insufficient knowledge of local circumstances.  This supposition of ignorance seems to be without merit.  State legislatures have to deal with this issue all the time when they need knowledge of what is transpiring in a State county.  How do they get this knowledge?  No doubt the legislators from that county provide it.  The citizens who chose them as their representatives most likely chose men who had the necessary knowledge.  Why would we not assume that this would also be true at the federal level?  Does crafting revenue legislation require a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each State?   Or isn’t a a general acquaintance with a State’s situation and resources,  the state of its agriculture, commerce, manufactures,  the nature of its products and consumptions, and with the different degrees and kinds of its wealth, property, and industry, sufficient?

Nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature.

In general this is the way nations operate. Even more democratic governments delegate the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature.

Inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation.

History has shown us that inquisitive and enlightened statesmen are deemed the best qualified for crafting such legislation.  As far as the general good sense of mankind is of any value, it is an accepted belief that such men have sufficient knowledge of local circumstances to create tax codes.

The taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the direct and those of the indirect kind. Though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. And indeed, as to the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difficulties apprehended. The knowledge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. The circumstances that may distinguish its situation in one State from its situation in another must be few, simple, and easy to be comprehended. The principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular State; and there could be no difficulty in ascertaining the revenue system of each. This could always be known from the respective codes of laws, as well as from the information of the members from the several States.

Internal taxes fall into two categories: the direct and indirect kind.  Though one might take exception to either form, the arguments seem to focus only against direct taxation.  This is probably because the latter, comprised of duties and excises on articles of consumption, is rather more straightforward.  The knowledge required to levy taxes of this sort is suggested by the nature of the article itself, or can easily be obtained by consulting with any well-informed man, particularly if that man is a merchant.  The States are likely to be very similar in respect to their situations vis a vis any imported item.  Exceptions could be made for those articles which are peculiarly needed in one state and not others.  Representatives from the States where this was the case could be relied upon to make sure that this situation were known.  The respective legislation from theses states would also provide insight as to the nature of these exceptions.

The objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. Land taxes are commonly laid in one of two modes, either by actual valuations, permanent or periodical, or by occasional assessments, at the discretion, or according to the best judgment, of certain officers whose duty it is to make them. In either case, the EXECUTION of the business, which alone requires the knowledge of local details, must be devolved upon discreet persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose. All that the law can do must be to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications and to draw the general outlines of their powers and duties. And what is there in all this that cannot as well be performed by the national legislature as by a State legislature? The attention of either can only reach to general principles; local details, as already observed, must be referred to those who are to execute the plan.

At first glance it would seem that the objections raised to taxes on personal property, houses and lands, have more merit.  But in delving deeper, these objections don’t bear close examination either.  Taxes on land are commonly levied in one of two ways: either by actual valuation – permanent or periodical, or by occasional assessments at the discretion and best judgement of certain officers whose duty it is to make them. In either case, performing this function requires local knowledge – and must be delegated to commissioners or assessors, elected by the people or appointed by the government for the purpose. This area of taxation is unique in that it requires this local expertise.  All that the law can really do in this arena is to either designate responsible parties, or prescribe the manner of their election or appointment.  It then has to specify their number and the qualifications for this role.  Once this is done, it must outline the general form of their powers and duties.  How does this differ from the same functions required of State legislatures?  In either case, their reach only extends to the formulation of general principles.  Local details, as already observed, must be referred to those who are to execute the plan.

But there is a simple point of view in which this matter may be placed that must be altogether satisfactory. The national legislature can make use of the system of each state within that state. The method of laying and collecting this species of taxes in each State can, in all its parts, be adopted and employed by the federal government.

But there is a simple solution to this issue.  The Congress can just make use of the already established system employed within each State.  The mechanisms employed by each State can simply be adopted and employed by the federal government for that State.

Let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each State, as described in the second section of the first article. An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. The abuse of this power of taxation seems to have been provided against with guarded circumspection. In addition to the precaution just mentioned, there is a provision that “all duties, imposts, and excises shall be UNIFORM throughout the United States.”

Remember, the proportion of these taxes is not at the discretion of Congress, but is to be determined by the population of each State, as stipulated in Section 2 of Article 1 of the Constitution.  This proportion is determined by an actual census.  This census effectually shuts the door to partiality or oppression.  The Framers would seem to have taken the potential for the abuse of taxation power into account in the proposed Constitution.  In addition, there is a provision that “all duties, imposts, and excises shall be UNIFORM throughout the United States.”

It has been very properly observed by different speakers and writers on the side of the Constitution, that if the exercise of the power of internal taxation by the Union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. By way of answer to this, it has been triumphantly asked, Why not in the first instance omit that ambiguous power, and rely upon the latter resource? Two solid answers may be given. The first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously exercised. The contrary, indeed, appears most probable. The second answer is, that the existence of such a power in the Constitution will have a strong influence in giving efficacy to requisitions. When the States know that the Union can apply itself without their agency, it will be a powerful motive for exertion on their part.

Some writers in support of the Constitution have quite properly observed that, if implementing internal taxation should prove in practice too problematic, the federal government might avoid it, and instead rely upon requisitions from the States.  To which the response is a triumphant: Why not just skip it and go directly to the system of requisition if this is so ambiguous?  There are two solid answers to this.  The first of these answers is that if it works, it will be preferable because it will be more efficient.  It is impossible to prove that it won’t work, except by trying it.  The second is that the mere existence of this power will make the possibility of successful requisitions much more likely.  When the States know that the federal government has recourse to direct taxation if they don’t fulfill their obligations, they will be much more likely to do their part.

As to the interference of the revenue laws of the Union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. The laws cannot, therefore, in a legal sense, interfere with each other; and it is far from impossible to avoid an interference even in the policy of their different systems. An effectual expedient for this purpose will be, mutually, to abstain from those objects which either side may have first had recourse to. As neither can control the other, each will have an obvious and sensible interest in this reciprocal forbearance. And where there is an immediate common interest, we may safely count upon its operation. When the particular debts of the States are done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. A small land tax will answer the purpose of the States, and will be their most simple and most fit resource.

We have already demonstrated that there is no clash between the authority of the federal government and the States with regard to taxation authority.  The laws cannot, therefore, in a legal sense, interfere with each other.  It is no big deal to avoid policy clashes in their implementations.  One way to effectively avoid policy clashes is for each to abstain from taxing things that the other is already taxing.  As neither the federal government nor the States may control the other, each will be motivated by self-interest to exercise reciprocal forbearance.  And where there is an immediate common interest, we may safely count upon its operation.  Once the States’ debts are eliminated, their expenses will be limited and the potential for conflict will almost disappear in consequence.  A small land tax will answer the purpose of the States, and will be their most simple and most fit resource.

Many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain.

Enemies of the proposed Constitution have raised all sorts of specters derived from this power of internal taxation, calculated to frighten the citizenry.  Some of these bogey monsters are: double sets of revenue officers, a duplication of their burdens by double taxation, and the frightful forms of odious and oppressive poll-taxes.  This is nothing more than the ingenious dexterity of political legerdemain.

As to the first point, there are two cases in which there can be no room for double sets of officers: one, where the right of imposing the tax is exclusively vested in the Union, which applies to the duties on imports; the other, where the object has not fallen under any State regulation or provision, which may be applicable to a variety of objects. In other cases, the probability is that the United States will either wholly abstain from the objects preoccupied for local purposes, or will make use of the State officers and State regulations for collecting the additional imposition. This will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the State governments and to the people. At all events, here is a practicable expedient for avoiding such an inconvenience; and nothing more can be required than to show that evils predicted to not necessarily result from the plan.

As to the first of these specters, double sets of revenue officers, some taxes are exclusively the purview of the Union like the duties on imports.  In this arena and others there is no duplication of effort.  In other cases, either the federal government will abstain from taxing in these realms or make use of State mechanisms.  It is, after all, an expense to collect taxes and the federal government will be motivated to avoid irritating the people and the State governments.  In any case, practicality will rule.  Just because something is predicted does not mean that it will come to pass as a result of the new Constitution.

As to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed; but the supposition is susceptible of a more precise answer. If such a spirit should infest the councils of the Union, the most certain road to the accomplishment of its aim would be to employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments. This would serve to turn the tide of State influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. But all suppositions of this kind are invidious, and ought to be banished from the consideration of the great question before the people. They can answer no other end than to cast a mist over the truth.

Arguments based on a supposition of cronyism must be answered by saying merely that such things ought not to be presumed.  In order to establish such a system the federal government would have to employ State officers directly as much as possible, in order to secure their loyalty to the Union.  In such a way would State influence be circumvented into national priorities.   But these are evil suppositions, and ought not to be considered.  They serve only to shroud the issue of ratification with needless conjecture which is not relevant.

As to the suggestion of double taxation, the answer is plain. The wants of the Union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be to be done by that of the State government. The quantity of taxes to be paid by the community must be the same in either case; with this advantage, if the provision is to be made by the Union that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under State regulation, and of course will render it less necessary to recur to more inconvenient methods; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. Happy it is when the interest which the government has in the preservation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression!

As to the suggestion of double taxation, the answer is plain. The wants of the Union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be done by that of the State government. The quantity of taxes to be paid by the community must be the same in either case.  Keep in mind, however, that there is a distinct advantage in the proposed system.  If the provision is to be made by the Union that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under State regulation.   This will render it less necessary to recur to more inconvenient methods.   With this further advantage, any real difficulty in the exercise of the power of internal taxation will be ameliorated by the greater care in the choice of those things which are taxed.  This will naturally tend to instill a policy of administration in which luxury items contribute the greatest portion to the public treasury.  This will diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society.  It is a good thing when the interest which the government has in the preservation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression!

As to poll taxes, I, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those States¹ which have uniformly been the most tenacious of their rights, I should lament to see them introduced into practice under the national government. But does it follow because there is a power to lay them that they will actually be laid? Every State in the Union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. Are the State governments to be stigmatized as tyrannies, because they possess this power? If they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? As little friendly as I am to the species of imposition, I still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. There may exist certain critical and tempestuous conjunctures of the State, in which a poll tax may become an inestimable resource. And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security.

As to poll taxes, I have to admit, I don’t like them and don’t approve of them, in spite of the fact they have been in use for a long time in some States¹.  These States are tenacious in their defense.  However, I would hate to see them put into practice under the national government.  But does it follow because there is a power to lay them that they will actually be laid?  Every State in the Union has power to impose taxes of this kind; and yet in several of them they are unknown in practice.  Are the State governments to be stigmatized as tyrannies, because they possess this power?  If they are not to be castigated for possessing, but not using this power, why should the proposed Constitution?  How can this be an argument against the Constitution?  As much as I dislike this particular form of taxation, I feel it incumbent upon me to defend its potential use by the federal government.  Emergencies happen, and when they do, it’s best not to place limits on the ability to meet them.  The very real scarcity of things to tax in this country is reason enough not to preclude the possibility.  Something could come up which would make a poll tax an essential resource.  We are not exempt from the calamities which have befallen other countries.  And so, because of my acknowledged lack of patience for any limitation on our ability to protect ourselves, I have to support retention of this power by the federal government.

[I have now gone through the examination of such of the powers proposed to be vested in the United States, which may be considered as having an immediate relation to the energy of the government; and have endeavored to answer the principal objections which have been made to them. I have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the Constitution, or of too manifest propriety to admit of controversy. The mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. This has determined me to refer it to the branch of our inquiries upon which we shall next enter.]E1

[I have now thoroughly examined the powers proposed to be vested in the United States which may be considered as essential to its functioning.  I have tried to answer the principal objections which have been made to them.  I have ignored the minor powers which haven’t been objected to.  These powers are either too small to raise alarm in the opponents of the Constitution, or too obviously necessary to raise objections.  Judicial power ought to have been considered as one of the latter, but because of its organization and extent, it has not been.  Consequently, I have determined to focus on it next.]E1

[I have now gone through the examination of those powers proposed to be conferred upon the federal government which relate more peculiarly to its energy, and to its efficiency for answering the great and primary objects of union. There are others which, though omitted here, will, in order to render the view of the subject more complete, be taken notice of under the next head of our inquiries. I flatter myself the progress already made will have sufficed to satisfy the candid and judicious part of the community that some of the objections which have been most strenuously urged against the Constitution, and which were most formidable in their first appearance, are not only destitute of substance, but if they had operated in the formation of the plan, would have rendered it incompetent to the great ends of public happiness and national prosperity. I equally flatter myself that a further and more critical investigation of the system will serve to recommend it still more to every sincere and disinterested advocate for good government and will leave no doubt with men of this character of the propriety and expediency of adopting it. Happy will it be for ourselves, and more honorable for human nature, if we have wisdom and virtue enough to set so glorious an example to mankind!]E1

[I have now thoroughly examined the powers proposed to be vested in the United States which may be considered as essential to its functioning.  I have tried to answer the principal objections which have been made to them.  There are others, which although omitted here, we will cover in subsequent essays, for the sake of completeness.  I flatter myself in thinking that the articles to date have adequately answered most of the concerns raised by those in opposition to the new Constitution – at least for those who are honest and open-minded.  In looking at these issues, it has become evident that had the opponents of the plan had their way, the government would have have been unable to function.  I equally flatter myself that a further and more critical investigation of the system will serve to recommend it still more to every sincere and disinterested advocate for good government and will leave no doubt with men of this character of the propriety and expediency of adopting it. Happy will it be for ourselves, and more honorable for human nature, if we have wisdom and virtue enough to set so glorious an example to mankind!]E1

PUBLIUS

1. The New England States.

E1. Two versions of this paragraph appear in different editions.

Washington, in conjunction with the French, began a campaign of deception to convince Clinton that an attack on New York was imminent.   He ordered the building of huge brick ovens  -  visible from New York – to help give the appearance that his army was in for the long haul and preparing to attack New York.  The wily Washington also prepared some phony papers indicating plans for an attack on Clinton bearing his signature and let them fall “inadvertently” into British hands.

Meanwhile his troops beat feet to Yorktown.  By the end of September, American and French troops besieged Yorktown with more than double the British force holding Yorktown.

The French fleet, commanded by the French Admiral de Grasse, blocked any escape routes out of the Chesapeake Bay.  At the end of September de Grasse defeated the British fleet sent to relieve Cornwallis, at the Battle of the Chesapeake.  De Grasse was an interesting giant of a man who, legend has it, on meeting Washington, embraced him in a bear hug and called him “mon petit general.”  Washington generally didn’t like to be touched and was anything but petit.  (Witnesses rather enjoyed the discomfort of the stoic Washington.)  Ironically, this hero of the American Revolution never actually set foot in the United States.

Another Frenchman, General Count William Deux-Ponts was assigned to take British redoubt No. 9 and Colonel Alexander Hamilton finally got his shot at command in taking redoubt No. 10.  Hamilton practically had to beg Washington for his opportunity to be a hero.

In the aftermath of the battle more than 7 thousand British soldiers were captured.  Cornwallis was so mortified by the loss that he sent an aid to surrender to Washington, pleading illness.  Washington, ever conscious of propriety, had a subordinate accept the surrender.

While the British band played an English ballad called, The World Turned Upside Down, British troops marched out between two lines of French and American soldiers and laid down their arms in a field.   Little did they know that on that very day, the 19th of October 1781, Clinton finally sent the long-awaited reinforcements from New York – 5,000 troops.  But it was too late.  The Revolution was, for all intents and purposes, over.   The United States had won!

… folks look, AARP knows and the people with me here today know, the president knows, and I know, that the status quo is simply not acceptable, It’s totally unacceptable. And it’s completely unsustainable. Even if we wanted to keep it the way we have it now. It can’t do it financially, We’re going to go bankrupt as a nation. Now, people when I say that look at me and say, What are you talking about, Joe? You’re telling me we have to go spend money to keep from going bankrupt?” Biden said. The answer’s yes, I’m telling you.

Borrowing and spending is not the way to prosperity.  Here’s the problem if you keep raising tax rates: You slow down economic growth.

With regard to the principles of political economy, which of these two men, in Hamilton’s words “understands those principles best?”

Concerning the General Power of Taxation (continued)

To the People of the State of New York:

BEFORE we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State.

Before we look at other objections to providing an indefinite power of taxation, I have one general observation to make.  If the jurisdiction of the national government, with respect to revenue, were to be restricted only to particular things, this would result in an undue proportion of the public obligation on those things.  This has the effect of creating two problems, it causes the oppression of particular branches of industry and the unequal distribution of taxes on not only the Several States but even between the citizens of the same State.

Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. There are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale.

Some have argued that the federal power of taxation should be limited to duties on imports.  Were that to be the case, it’s obvious that in not having access to other resources, the government would be sorely tempted to extend these duties to an injurious excess.  Some people claim that import duties can never be too high, since the higher they are, the more they supposedly help discourage extravagant production, and promote a favorable balance of trade for domestic manufacturers.  But all extremes are harmful in various ways.  Placing exorbitant duties on imports would encourage smuggling, which always puts fair trade at a disadvantage, and has a harmful effect on revenue.  Additionally, high duties give unfair advantage and create class distinctions between manufacturers and customers by giving the former an unearned monopoly of the markets.  This situation sometimes causes industries to concentrate in areas for which they are naturally less suited.   Finally, high duties often oppress the poor merchant who is forced to pay them without passing them on to his customer because the market will not bear the increase in the final price.   When supply and demand are balanced, the consumer generally pays the duty.  but when supply exceeds demand, the merchant ends up paying the bulk of the duty, cutting in on not only his profits, but frequently on his very capital.  I believe that this situation occurs more often than one might think, with the seller bearing the brunt of the burden.  Merchants, especially in a country of small commercial capital, are often forced to keep prices down in order to make sales and convert inventory back to dollars.

The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing States. But it is not so generally true as to render it equitable, that those duties should form the only national fund. When they are paid by the merchant they operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the character of consumers. In this view they are productive of inequality among the States; which inequality would be increased with the increased extent of the duties. The confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing States. The States which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those States which are not in the same favorable situation. They would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. New York is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the Union to external taxation may be aware of. New York is an importing State, and is not likely speedily to be, to any great extent, a manufacturing State. She would, of course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts.

It is largely true that the consumer foots the bill for import duties, and that it is only reasonable therefore, that duties on imports should go into federal coffers, rather than State ones.  However, that fact does not imply that this should be the only form of revenue available to the federal government.  When the merchant pays his taxes, they assume the character of a tax upon the consumers buying his goods.  Those consumers do the actual paying of their portion on behalf of the States in which they reside.  This results in an imbalance which will only be magnified as duties proliferate.  Limiting national revenue to this form of taxation increases the imbalance between manufacturing and non-manufacturing States.  States which are able to produce more goods to supply their own wants will consume fewer imports than States which are unable to do so.  In a system reliant solely on import duties for revenue, these States would not contribute their fair share to the national treasury.  In order to ensure that they do contribute their just portion, it would be necessary to extend revenue to excise taxes to certain forms of manufacturing as well.  New York would be affected by this more than some of her citizens realize.  These very citizens of whom I speak argue for limiting the power of the union to import taxes only.  New York is a net importer, and would consequently suffer a great deal as she is unlikely to become a manufacturing State any time soon.

So far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. I readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, HOPE, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. Necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. But even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. Let us now return to the examination of objections.

In as much as these observations point to the danger of import duties being extended to unreasonable extremes, we refer to something stated in an earlier essay – if duties get too high it is counter productive to gathering revenue as people stop buying the taxed goods.  Thus, there is an implicit check on this potentiality.    But this check only works if there are other means of gathering revenues.  If not, then necessity would prevail.  In HOPE of raising sufficient revenue, the tax-code would be subject to more and more experiment and new penalties would be invented.  For a short time they would have the desired effect, but only until people figured out ways to get around these precautions.  This would in turn, foster new measures, based on false assumptions, which would require a lot of hard-won experience to recover from.   But, even if such excesses in import duty policy did not transpire as a result of limiting revenue to this form of taxation, the inequality referred to above would still happen, although perhaps not the same degree as from other causes.  Let us now return to the examination of objections.

One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the House of Representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. This argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries.

Perhaps the most significant of these objections, if judging by how often it is repeated, is that the House of Representatives will not be able to adequately represent the interests and feelings of every part of the community.  It is claimed that the House is simply too small to represent all of its constituents.  This argument is as seductive as it is specious.  It is calculated to appeal to the prejudices of those to whom it is addressed.  But, if we disassemble the argument, we will find that is merely a collection of fine-sounding words with no substance.  The goal it espouses is impractical, and what’s more, unnecessary.  For now, I will set aside for later address, the portion of the argument that pertains to the effectiveness vis a vis the relative size of the representative body.  Here I will examine how this contrary supposition is applied to the subject of taxation.

The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. These considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community.

The idea that all classes of people would be represented by persons of their class is a panacea.  Unless the Constitution specified that each occupation should send one or more members for representation, the thing would never take place in practice.  Factory workers and tradesmen will always be inclined, with few exceptions, to give their votes to merchants, rather than to member of their professions or trades.  These discerning citizens well-know that the skills of workers and tradesmen furnish the materials of mercantile enterprise and industry. Many of them are directly involved in commerce.  They know where their bread is buttered.  They know that their interests will be better promoted by the merchant than by themselves.  They know that their life experience has not given them the abilities needed to work effectively in a deliberative assembly.  Their skills are useless in this realm.  Whereas those of the merchant are better suited for legislative combat with those who oppose the interests of manufacturing and trade.   These considerations, and many others which history and experience confirm, prove that tradesmen and factory workers will generally be inclined to give their votes to merchants and those who merchants recommend.  We must therefore consider merchants as the natural representatives of all these classes of the community.
With regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community.
We don’t need to say much about the learned professions. They do not have distinct interests in society.  They will, according to their situation and talents, choose representation from amongst themselves and other parts of the community.

Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all.

This leaves us with landed interests.  Politically speaking this group is completely unified from the wealthiest landlord to the poorest tenant.  No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre.  It is in the best interest of every landholder to keep taxes on land as low as possible.  This common interest may be considered the surest bond of sympathy between members of this group.  But suppose we imagine that there is a difference between the largest landholder and the middling farmer?  Why would we think that the first would have a better chance of being elected to the national legislature than the last?  If we base our analysis on fact, we have only to look at the NY senate and assembly.  Moderate proprietors of land prevail in both.  The senate is just as broadly represented as the assembly – which has more members.  Qualifications are what matter.   Regardless of the size of the legislature, votes will fall to those in whom there is the most confidence, whether they are men of large fortune, moderate property, or men of no property at all.

It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? Will not the landholder know and feel whatever will promote or insure the interest of landed property? And will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society?

Some say that it is necessary that all the classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to.  But we know that this can never happen in a society where people are free to vote for whom they choose.  Where freedom prevails, the representative body is mostly comprised of landholders, merchants, and men of the learned professions.  Where is the danger in this, that the interests and feelings of the different classes of citizens won’t be adequately considered by such representatives?  Won’t the landholder relate to the interests of landed property?  Won’t he seek to protect its interests?  Won’t the merchant be disposed to look after the interests of the worker and tradesmen, whose interests are so intrinsically tied to his own?  Won’t the man of the learned profession, naturally neutral to the interests of the various branches of industry, be likely to prove an impartial arbiter between them on behalf of society as a whole?

If we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent.

If we take into account the temporary issues of the moment – issues to which a wise administration will not be inattentive – we must ask ourselves who is best suited to be a competent judge of their significance.  Is the man who’s education and situation permit him to gather information and think upon it, not better suited for the legislature than one who’s circle does not extend beyond his neighbors and acquaintances?  Is it not in the best interests of those running for the House to inform themselves about the dispositions and inclinations of those to whom he is dependent for election?  Will he not allow them the proper degree of influence on his conduct?  This dependence, and the fact that he and his offspring will have to live under the laws he passes, ensures that there is a strong tie between the representative and the constituent.

There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.

Taxation is the most complex aspect of government.  The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue.   It is a provable fact that the most productive system of taxation will always be the last burdensome.  The person responsible for imposing taxes has to understand the situation of the people at large and the state of the country’s resources.  This is all that can be reasonably meant by the phrase “a knowledge of the interests and feelings of the people.”  In any other sense, the phrase is meaningless.  In this sense, then, let every thinking citizen decide for himself where the requisite qualification is most likely to be found.

PUBLIUS

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Concerning the General Power of Taxation (continued)

To the People of the State of New York:

I FLATTER myself it has been clearly shown in my last number that the particular States, under the proposed Constitution, would have COEQUAL authority with the Union in the article of revenue, except as to duties on imports. As this leaves open to the States far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, independent of all external control. That the field is sufficiently wide will more fully appear when we come to advert to the inconsiderable share of the public expenses for which it will fall to the lot of the State governments to provide.

I’d like to think that I have clearly shown in the previous essay, that the States under the proposed Constitution, will have equal authority with the Union to raise revenue in all areas except duties on imports.  This leaves the greatest part of the resources of the community open to the States, and so none can say that they won’t have plenty of avenues with which to supply their wants, independent of external control.  This will become all the more obvious when we show that much of the public expenses will be borne by State governments.

To argue upon abstract principles that this co-ordinate authority cannot exist, is to set up supposition and theory against fact and reality. However proper such reasonings might be to show that a thing ought not to exist, they are wholly to be rejected when they are made use of to prove that it does not exist contrary to the evidence of the fact itself. It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. Many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to annul or repeal the acts of the other. But a man would have been regarded as frantic who should have attempted at Rome to disprove their existence. It will be readily understood that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy. And yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness.

Arguing that this shared authority can’t exist is to put supposition and theory against fact and reality.  Although perhaps it might seem that such co-equal authority ought not to exist, the facts show otherwise.    Historically, it is well-known that in the Roman republic, the legislative authority was split between two different political bodies – for ages.  These bodies were not branches of the same leglisture, but as distinct and independent legislatures with competing interests – one plebian and one patrictian.  Many clever arguments have been made, in an attempt to prove the impracticality of two seemingly contradictory authorities, each with the power to annul or repeal the acts of the other.  But anyone who attempted to tell the Romans that would have been considered a lunatic.  The two legislatures to which I refer are COMITIA CENTURIATA and the COMITIA TRIBUTA.   In the former, the people’s votes were represented by centuries, so as to give priority to patrician interests.  In the latter, which was larger, the common interests were represented.  Despite being somewhat at odds with one another, these two legislatures coexisted for a long time, and the Roman republic rose to the utmost height of human greatness.

In the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. And in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the States will naturally reduce themselves within a very narrow compass; and in the interim, the United States will, in all probability, find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort.

In the present case, we have no such contradictions to deal with.  There is no power on either side to annul the acts of the other.  There is little reason to fear problems, because before long the needs of the States will fade to a well-defined and narrow scope.  At the same time, the federal government will not want to meddle in those issues which are near and dear to the states.

To form a more precise judgment of the true merits of this question, it will be well to advert to the proportion between the objects that will require a federal provision in respect to revenue, and those which will require a State provision. We shall discover that the former are altogether unlimited, and that the latter are circumscribed within very moderate bounds. In pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. It is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the Union, and to maintain those establishments which, for some time to come, would suffice in time of peace. But would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government intrusted with the care of the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? If, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? Though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. Observations confined to the mere prospects of internal attacks can deserve no weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce. The support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic.

In order to get a true picture of this issue, it behooves us to look at the responsibilities of the federal government in proportion to the revenue required to meet those responsibilities in comparison with the responsibilities of the States and their attendant revenue needs.  In so doing, we will find that the responsibilities of the federal government are unlimited, while those of the States are limited and well-defined.  Along these lines, we must bear in mind that the we have to look not only to the present, but also with an eye toward the future.   One cannot create a civil constitution, the  design of which is  based solely on present circumstance, but rather one must try to anticipate what may happen in the future, at least according to the patterns established by the natural course of human affairs.  It would be ridiculous to attempt to calculate the needs of a federal government by basing them only upon what it’s current needs are.  Instead one must at least make an attempt to create a system in which future emergencies may be dealt with.  Because it is impossible to determine what might come up, so it is impossible to determine what powers may be necessary in the future.  While you might be able to calculate the revenue likely to be required in the short term, based on current expenditures and the maintenance of existing military bases, this would only work in time of peace.   But it would be silly to pretend that this will always be the case.  At some point we will go to war and it is unwise to leave us fundamentally unprepared to do so.  A government entrusted with the care of the state has to be able to maintain the pubic peace, defend against invasion, and wage war if necessary.  So, if this be the case, that we should not fall short of what is necessary, then where should we draw the line with respect to meeting future demands.    While some may claim to be able to determine proper limits, we are confident in asserting that they would be as incapable of proving this as they would be of producing data which accurately predicts the day the world ends.  Such calculations cannot be based exclusively upon what might arise internally, if even that was possible.  For if we intend to be a nation of trade, it is inevitable that we will be called upon one day to defend our commerce.  The support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic.

Admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. A cloud has been for some time hanging over the European world. If it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? No reasonable man would hastily pronounce that we are entirely out of its reach. Or if the combustible materials that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other cause or from some other quarter? Let us recollect that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. Who could have imagined at the conclusion of the last war that France and Britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? To judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character.

Even if we grant the Pollyanna notion that we ought to tie the hands of government by strangling its capabilities to wage offensive wars, surely no one would argue that we should also unilaterally disable it from protecting the nation against the ambition or enmity of other nations. A cloud has been for some time hanging over the European world. If it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? No reasonable man would hastily pronounce that we are entirely out of its reach.  Even if we avoid getting entangled in European affairs, who is to say how long we will be able to do so.  Who is to say that our tranquility won’t be disturbed from some other quarter of the globe?   We should remember that we won’t always have the luxury of choosing between war and peace, however well-intentioned we may be.  We cannot count on our moderation or hope to extinguish the ambitions of others.  Who could have predicted, that so soon after the conclusion of the last war, an exhausted France and Britain would once again renew hostilities?  History tells us that man is prone to war.  The fiery and destructive passions of war are much more powerful in human nature than are the mild  and beneficent sentiments of peace.   To model our political systems upon speculations of lasting tranquility, is to depend on the weaker motivations of the human character.

What are the chief sources of expense in every government? What has occasioned that enormous accumulation of debts with which several of the European nations are oppressed? The answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense.

What are the main sources of expenditure in every government?  What has caused the huge accumulations of debt to accrue in several European nations?  The answer is obvious – wars and rebellions.  Government institutions  are necessary to guard the body politic against these two diseases of society – and these institutions cost money.  The expenses of the individual States, with regard to supplying for the needs of the legislature, judiciary, and other local government functions, pale in comparison to the costs associated with maintaining a national defense.

In the kingdom of Great Britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. If, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. If we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good.

If we look at the kingdom of Great Britain with all its monarchical grandeur and ostentation, we will see that less than 1/15 of the nations annual income goes to support the running of government.  The vast majority of revenue is absorbed in the payment of interest on debts incurred as a result of the wars in which the country has been engaged, and in the maintenance of fleets and armies.  Some might argue that you can’t compare the vainglorious proclivities of a monarchy with the frugality and modest tendencies of a republic.  To that we answer that while this may be true, the proportions are reversed when in comes to domestic expenditures.  That which is modest in a republican government is likely to be many times that allocated in a monarchy.  If we balance these two things against one another, then our comparison still holds.

But let us advert to the large debt which we have ourselves contracted in a single war, and let us only calculate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal and state expenditures. It is true that several of the States, separately, are encumbered with considerable debts, which are an excrescence of the late war. But this cannot happen again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue of any consequence, which the State governments will continue to experience, will be for the mere support of their respective civil list; to which, if we add all contingencies, the total amount in every State ought to fall considerably short of two hundred thousand pounds.

But we have only to look at our own situation and the large debt that we ourselves have contracted as a result of a single war.  If we calculate that we will, like any nation, have our share of war and peace, then it should be obvious that there will always be a huge difference between the demands of federal and state expenditures.  While iis true that several of the States incurred significant debts as a result of the Revolution, this can’t happen again if the proposed plan is adopted.  Once these debts are discharged, the only demands for revenue will be for the administration of local governments.  If we add all contingencies, such expenditures ought to fall considerably short of two hundred thousand pounds.

In framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. If this principle be a just one our attention would be directed to a provision in favor of the State governments for an annual sum of about two hundred thousand pounds; while the exigencies of the Union could be susceptible of no limits, even in imagination. In this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an exclusive source of revenue for any sum beyond the extent of two hundred thousand pounds? To extend its power further, in exclusion of the authority of the Union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them.

In putting together a government designed for posterity as well as the present, we should look to those provisions which are intended to be permanent, and calculate the costs associated with them, rather than with an eye only toward meeting temporary needs.  If this is a fair supposition, then we can expect that the State governments will require about two hundred thousand pounds each year. Conversely, the future needs of the Union are impossible to calculate as we cannot predict what emergencies might arise.   Given this, what logical argument can be made for having the states retain, in perpetuity, and exclusive source of revenue for any sum beyond two hundred thousand pounds?  In extending state power further, in exclusion of the authority of the Union, would be to deprive resources for the public welfare from those responsible for it, and put them into hands which have no legitimate need for them.

Suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the Union and its members, in proportion to their comparative necessities; what particular fund could have been selected for the use of the States, that would not either have been too much or too little too little for their present, too much for their future wants? As to the line of separation between external and internal taxes, this would leave to the States, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the Union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. If we desert this boundary and content ourselves with leaving to the States an exclusive power of taxing houses and lands, there would still be a great disproportion between the means and the end; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. If any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular States, and would have left them dependent on the Union for a provision for this purpose.

Let us suppose that the convention had set things up so as to allocate revenue between the Union and its members on the basis of proportion to their relative needs.  What particular fund could have been selected for the use of the States, that would not either have been too much or too little too little for their present, too much for their future wants?   If we draw the line for taxation by distinguishing between external and internal taxes,  (the latter for the States, the former for the Federal government), this would leave to the States roughly two thirds of available revenue to defray between five and ten percent of its expenses.  This would leave the Union with with one roughly on third of available revenue with which to defray ninety to ninety-five percent of the country’s expenses.  Should we relax on this point and content ourselves with leaving the States the exclusive authority of taxation on houses and land, there would still be a huge imbalance in the proportion of means to ends.  In this situation the states would have access to about one third of all revenue to meet, at most ten percent of the country’s needs.    In short, there didn’t seem to be any way of designing an appropriate taxation scheme which would be sufficient and at the same time not exorbitant.  Any limited mode selected would have been inadequate for discharging the existing debts of the particular States and would have left them dependent on the Union to provide for this.

The preceding train of observation will justify the position which has been elsewhere laid down, that “A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union.” Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities. There remain a few other lights, in which this important subject of taxation will claim a further consideration.

The preceding observations should amply justify the position we have been advocating: “A CONCURRENT JURISDICTION in the article of taxation was the only practical alternative available to simply completely delegating this power to the federal government.  Any scheme for separating taxation into realms would have caused more problems than it would have solved – sacrificing the interests of the Union to those of the States.  The convention thought it preferable to share this jurisdiction than to completely subordinate the State power of taxation to that of the Union.   In this way they sought to reconcile an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities.   But we are not done yet, there are still a few more things which we will discuss on this topic.

PUBLIUS

Concerning the General Power of Taxation (continued)

To the People of the State of New York:

THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause. The last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature “to make all laws which shall be necessary and proper for carrying into execution the powers by that Constitution vested in the government of the United States, or in any department or officer thereof”; and the second clause of the sixth article declares, “that the Constitution and the laws of the United States made in pursuance thereof, and the treaties made by their authority shall be the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.”

The argument against the provisions of the Constitution with respect to taxation, hinges upon the last clause of the eighth section of the first article.  Under the proposed Constitution the national legislature is authorized “to make all laws which shall be necessary and proper for carrying into execution the powers by that Constitution vested in the government of the United States, or in any department or officer thereof.”   Also of consternation to opponents of the proposed plan, is the second clause of the sixth article, which declares, “that the Constitution and the laws of the United States made in pursuance thereof, and the treaties made by their authority shall be the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.”

These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. 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. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.

These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution.  They have been misrepresented as the pernicious engines by which the State governments will be destroyed and the liberties of the people exterminated.   They have been presented as a hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane.  But after all this hubbub, it has to be admitted that there would be no difference in the operation of the government whether these two clauses were omitted or if they were repeated in every article.  They only point out the obvious.  The very act of constituting a federal government and vesting it with certain specified powers render them an obvious implication.  This is such a self-evident truth that any one that is inclined to be moderate will have a hard time listening to those that rail against this part of the plan, without becoming irritated.

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?

What is power, but the ability or capability of doing a thing?  What is the ability to do a thing, but to possess the means of doing it?  What is a LEGISLATIVE power, but a power of making LAWS?  Laws themselves are the means to execute a LEGISLATIVE power.  The power of laying and collecting taxes is nothing more than 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? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.

This line of inquiry allows us to judge the true nature of the troublesome clause necessary and proper.  Here is the palpable truth in this reasoning: the power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power.  This much maligned phrase does nothing more than to declare this truth.  The national legislature, to whom the power of laying and collecting taxes had been previously given, is permitted, in the execution of that power, to pass all laws necessary and proper to carry it into effect.  We are speaking of taxation because it is the most important of the authorities proposed to be conferred upon the Union.    However, the same arguments yield the same conclusion when applied to all other powers declared in the Constitution.    That is, in fact why this clause has been designated as the sweeping clause.  It authorizes the national legislature to pass all necessary and proper laws.  If there be any problems, they are not with this clause, but with the enumerated powers upon which this clause acts upon.  The clause itself, although a bit redundant and perhaps a tautology, is perfectly harmless.

But SUSPICION may ask, Why then was it introduced? 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 legitimate authorities of the Union. 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. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare.

Suspicious minds might ask, Why then was it introduced?   The only logical answer is, that although obvious and perhaps redundant, it was deemed better to spell things out, than to risk having the proposed constitution watered down in the future by those would would seek to curtail and evade the legitimate authority of the Union.  Those in the Convention probably foresaw that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union.  Indeed a primary reason for these papers is to warn about just this danger.  So the framers of the proposed Constitution thought to leave nothing to interpretation with regard to such an important point.   Whatever the reason for it, its importance is proven by the vehemence of those who are railing against it.  This demonstrates a tendency toward the very thing this phrase was included to guard against – a desire to weaken the federal authority.

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. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a land tax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths.

But it might be asked, Who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union?  Here is my answer:  First and foremost, the fact that these powers are granted is as significant as this declaratory clause.  Second, the national government, like the government of any nation, must judge the necessity of the proper exercise of its powers, while its citizens must judge the propriety.  If the federal government should exceed the legitimate bounds of its authority and become tyrannical, then the people will have to do what they must to redress the injury to the Constitution.  The federal government is, after all the creature of the people.  With regard to the Constitution, the propriety of a law should be determined by the nature of the powers upon which it is founded.   For example, (although it’s hard to imagine,) suppose that Congress attempted to vary the law of descent in any State.  Would it not obvious that the it had overstepped its jurisdiction and infringed upon the State?  Suppose again, that on the pretext of interfering with its revenues, it should invalidate a land tax imposed by the State.  Wouldn’t this also be an obvious invasion into a realm that the Constitution obviously supposes to be concurrently held by the State governments?  If there were ever any doubt of this, then we can thank those who in their haste to discredit the proposed Constitution, have enveloped it in a cloud of confusion.

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. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.

But it is said that the laws of the Union are to be the supreme law of the land.  How else could it be?  What would they amount to if this were not the case?  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.  Similarly, if a number of political societies enter into a larger political society, then any powers delegated to it, must take precedence and be supreme over its members, and by extension, the individuals of whom they are composed.  Otherwise it would just be a treaty, rather than a government.  A treaty relies upon the good faith of the signatories.  Whereas government is another word for POLITICAL POWER AND SUPREMACY.  But, this is not to say that those acts which are not constitutional, but invasions of the remaining authorities of the smaller societies, will become the supreme law of the land.  These would merely be acts of usurpation, and will deserve to be treated as such.   Just like the necessary and proper clause, the supremacy clause merely states the obvious truth with regard to the formation of any federal government.  It is expressly stated that it only pertains to the supremacy of laws made pursuant to the Constitution.  Once again, although every one knew it, they thought it safer to say so explicitly.

Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be shown in the next paper that this concurrent jurisdiction in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union.

Therefore, although a law levying a federal tax would be supreme in nature, and could not legally be opposed or controlled, a law preventing or abrogating a state tax (unless with respect to imports and exports), could not be regarded as derived from the Constitution.  It would be a usurpation of power not granted  by the Constitution.  And although both entities taxing the same object might render the collection thereof more difficult and less lucrative, this would be disadvantageous to both governments.   It would not be because of any uneven balance of power, but from one side or the other doing something injudicious.  One hopes that such a state of affairs would correct itself.    According to the Constitution, the states have their own uncontrollable and independent authority to raise the revenue they need, by using any type of tax they like other than imports and exports.    In the next paper we will show that this concurrent jurisdiction with respect to taxation, was the only acceptable alternative to complete subordination of the State taxation power to that of the Union.

PUBLIUS

Tax-Loving Conservatives – Gary North – Mises Daily.

Alexander Hamilton was a crusader for higher taxes and a larger national government in the 1790s. He wanted higher taxes in order to raise money for a higher federal debt. He wanted higher federal debt because he wanted investors in government IOUs to commit to the survival of the United States.

Emphasis WWTFT.

This article makes some very good points about protectionism and crony capitalism, but attributes all of these things to Hamilton.   Hamilton was a product of his time and circumstance.  The government under the Articles of Confederation was in danger of collapsing.  This nation owes him a tremendous debt for putting the country on a sound economic footing.  Even his most bitter political foes had to acknowledge his brilliance as a financier.  He wasn’t perfect, and did not foresee what others (like Madison and Jefferson) did.   But he wouldn’t have been for the degree of government interference we have today.

If you can get beyond the exaggeration:

The amazing thing about Hamiltonians is that they are impervious to economic logic. They argue that raising taxes is bad, unless it’s the sales taxes called tariffs. Then they switch sides. They join the ranks of the tax collectors, the bureaucrats, and the people with badges and guns who say that higher taxes and reduced choices make America rich.

There is a really good hypothetical argument against protectionism.  It’s just not necessarily Hamiltonians who argue for crony capitalism.  President Obama is no Hamiltonian.

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Concerning the General Power of Taxation (continued)

To the People of the State of New York:

ALTHOUGH I am of opinion that there would be no real danger of the consequences which seem to be apprehended to the State governments from a power in the Union to control them in the levies of money, because I am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the State governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet I am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this concession, I affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution.

I think the risk of the State governments being controlled by the federal government as a result of the federal government’s being able to levy taxes is being over stated.  The people are too smart for that, and well recognize the importance of local government.  Nevertheless, I am willing to admit the soundness of the argument that the individual States should have an independent and uncontrollable authority to raise their own revenues for their own needs.  Furthermore, I also affirm that ( with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense.  Any attempt on the part of the national government to abridge them in the exercise of this authority would be an exercise of power outside of anything stipulated in the Constitution.

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. 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. These three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: The last clause but one in the eighth section of the first article provides expressly that Congress shall exercise “exclusive legislation” over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers Congress “to lay and collect taxes, duties, imposts and excises”; and the second clause of the tenth section of the same article declares that, “no state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws.” Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any State; in consequence of which qualification, it now only extends to the duties on imports. This answers to the second case. 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.

Consolidating all the States into one integrated national sovereign government would imply that all of States were subordinated to it.  Any power that might remain in them would be dependent on the general will.  But since the proposed Constitution specifies only partial consolidation of power, the State governments would clearly retain all the rights of sovereignty which they had before, and which they did not exclusively delegate to the United States.  Those powers exclusively delegated and set aside for the federal government’s authority are of three varieties.  The first is where the Constitution expressly grants exclusive authority to the Union.  The second is where it expressly prohibits the States from exercising a power similar to one granted the federal government.  The third is the case where it would be contradictory and inconsistent to grant a similar authority to the States.  In this last case I use the terms contradictory and inconsistent to distinguish it from where a shared power would not result in any direct contradiction or inconsistency with constitutional authority. These three cases of exclusive jurisdiction in the federal government may be exemplified by the following sections of the new Constitution.  The first case is typified by Article 1, Section 8, in the next to the last clause, which stipulates that Congress shall exercise “exclusive legislation” over the district which will be set aside as the seat of government.  The first clause in this same section provides an example of the next case, where the Constitution declares that “no state shall, without the consent of Congress, lay any impost or duties on imports or exports, except for the purpose of executing its inspection laws.”  And so, this indicates an  exclusive power in the Union to lay duties on imports and exports, with only the exception noted.  This is ameliorated by the fact that in the next clause, the Constitution declares that no tax or duty shall be laid on articles exported from any State.  The end result of this is that this power is effectively limited to duties on imports.  Finally, the third case is demonstrated in the clause which states that Congress shall have power  “to establish an UNIFORM RULE of naturalization throughout the United States.”  Of course this is an exclusive power.  How could it be otherwise?  If each State were to come up with its own rule, then by definition they would not be uniform.

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. In any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the Union of the power of laying such duties implied the exclusion of the States, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the Union. 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. It would be mere sophistry to argue that it was meant to exclude them absolutely from the imposition of taxes of the former kind, and to leave them at liberty to lay others subject to the control of the national legislature. The restraining or prohibitory clause only says, that they shall not, without the consent of Congress, lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the States, with the consent of the national legislature, might tax imports and exports; and that they might tax every other article, unless controlled by the same body. If this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the Union? It is evident that this could not have been the intention, and that it will not bear a construction of the kind.

Some might think that the power of imposing taxes on all articles other than exports and imports is a case similar to the last.  In fact, it is nothing of the kind.  Such taxation is obviously a concurrent and coequal authority vested both in the United States and the individual States.  There is nothing whatsoever in the wording to suggest that this power is exclusive to the federal government.   There is nothing that says this power is exclusively reserved to the Union, neither is there anything which says that the States cannot exercise this power.  In fact, this can as much as be proved by noting the prohibition upon the States to levy duties on imports and exports.  This restriction implies by its stipulation that, if it were not so specified the States would have this authority over taxation of imports and exports – just as they evidently have with all other varieties of taxation.   It would be unnecessary to explicitly call out this taxation as an exeption, if in fact taxation as a whole were an exclusive federal power.  In fact it could be dangerous to do so for then the federal government and the states would be at odds over taxation in general.  Therefore, the states share a concurrent power of taxation with the Union in all cases in which the restriction does not apply.  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.  It is hard to argue that the Constitution means to exclude them absolutely from the imposition of taxes of the former kind, and to leave them at liberty to lay others subject to the control of the national legislature.  The clause only states that the States shall not, without the consent of Congress, lay such duties.  When you put this together with the fact that import and exports are explicitly excepted and the implication that others are not, one ends up with a rather weird argument which goes something like this. If the States have to get a special dispensation to be allowed to do something that is explicitly prohibited, then the States can tax everything else but only through the jurisdiction of the federal government.  If this were the case, then why not just make taxation a general power of the federal government?  This is was obviously not the intention and the argument that it was, simply doesn’t hold water.

As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it inexpedient that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty.

The argument that having the power of taxation in both the Union and the States is inconsistent doesn’t make sense either.  If this were inconsistent in general, then what would be the point of a particular exclusion?  Just because an item is taxed by the states and a further tax applied by the federal government on the same item might make the product prohibitively expensive, doesn’t imply that further tax would be unconstitutional.  It might not be smart, but that doesn’t imply a direct conflict of power.  Both the federal and State governments might find themselves in the position of having to raise funds at the same time. Stuff happens.  It is not the mutual exercise of powers that occasionally cause inconvenience which threatens the pre-existing rights of sovereignty, but the danger of constitutional inconsistency.

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.

The Constitution as a whole speaks to the concept of a division of sovereign power between the States and the federal government.   Any power not explicitly divested by the States remains within the purview of the States.  This is why the exceptions are called out where it just makes no sense for the States and the Federal governments to be at odds with one another.  See the Article 1, Section 10 for just such an example.  This should provide a clear indication of what was intended by those in Convention, and serve to support my arguments.

PUBLIUS