Concerning the General Power of Taxation (cont.) (Hamilton)
In this essay, Hamilton gives considerable attention to the nature of two controversial, constitutional provisions: the Necessary and Proper Clause and Supremacy Clause. Antifederalists contended that the two clauses gave the federal government too much power and, if ratified, would result in the usurpation of state rights and in the diminution of civil liberties. To address these concerns, Hamilton reminds Antifederalists that “[t]he propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded.” To Hamilton, the ultimate source of authority under the new plan continues to reside with the people
Antifederalists claim that the vagueness of the Necessary and Proper Clause gives Congress an avenue to interpret the federal government’s powers broadly and thereby subjects state administrations to federal control. The purpose of the Clause, Hamilton claims, is not to delegate extensive power to the federal government, nor to reduce that of the states. Rather, it is to promote effective government. It decreed to “guard against all caviling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the union.” Put differently, the federal government must be able to address unforeseen national problems, and, in doing so, continue to operate within those constitutional confinements expressed under Article I, Section 8.
The Supremacy Clause is also crucial for effective government. Hamilton says that in any society, the laws passed under a legitimate sovereign power, must be seen as the “supreme regulator of [the people’s] conduct.” In that line of reasoning, the laws passed under the state government, pursuant to the state constitution, are supreme. And the laws passed by the federal government, pursuant to the U.S. Constitution, are the supreme laws of the land. Thus, laws within the federal government’s jurisdiction preempt conflicting state and local laws.
Who, or what authority, is to guard against an overpowering federal government declaring a questionable law supreme and “necessary” to carry out some “proper” end? Under the new plan, the federal government is the first judge in adjudicating constitutional disputes. But what if the federal government ignores its judiciary responsibility and thereby condones legislation that runs counter to the original purpose of the Constitution? Or what of the possibility of the federal government misusing the Necessary and Proper Clause to procure more power over state governments? To Hamilton, the ultimate safeguard of states’ rights and fundamental liberties is the people.
Constitutional legitimacy ultimately lies with the people of the United States. As the ultimate arbiter, the people have the final say over whether a questionable government action is essential to implementing an expressed power, or whether a federal law preempts state law. In other words, the people ultimately serve as the “court” of last resort. The people can exercise this authority in electoral moments, where they vote incumbents out of office, or in the process of ratifying constitutional amendments. As Hamilton says, if the people created the Constitution, then they can modify it, or even abolish it altogether.
No Constitution is perfect. No Constitution can serve as an effective safeguard against political uprising or insurrection. As Hamilton wrote: "as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation.” “When they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities (Federalist 16)."
In the federal paper # 33, I think that Hamilton leaves us with some sort of ambiguities with respect to the power of Congress. Was it on purpose? One may not know for sure. Hamilton claims that the purpose of the “Necessary and proper” Clause is not to delegate too much power to the federal government, not to reduce the power of the states. His idea is to promote effective government. But at the same time, he asserts that the ultimate authority continues to reside with people. In other words, the people can exercise this authority in electoral moments by throwing incumbents out office. I don’t see the plea for an effective government. Rather, I see conflict not only between different branches of governments, but also between states and federal government. Not surprisingly, we see conflict between the states and the federal government on the contemporary issues such as the Affordable Healthcare debate law. The question is: how has the necessary and power clause expanded federal government? First of all, because the elastic clause, “Necessary and Proper”, is in the Constitution about Congressional powers (Article 1, Section 8, clause 18), it is describing the things Congress can do. The clause says that Congress has the power to “make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the government of the United States… This means that Congress can make any law about anything that was put in the constitution as a power of the government. Here, if the individual mandate of Healthcare is base on taxation, then this definitely expands the federal government, as Congress is part of the federal government. Additionally, since constitutional legitimacy ultimately lies with the people, even if the people through incumbents out of office anytime during the electoral moments, then, at least for a short period of time, no way, one can see a diffused power on the part of federal government. But also, Hamilton leaves us with some issues with respect to conflict between the Judiciary and the Congress along with the Executive branch.
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