Chapter: The Same Subject Continued (Concerning the General Power of Taxation)

From The Independent Journal. Wednesday, January 2, 1788.

HAMILTON

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.

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.

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.

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 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.

PUBLIUS

 This paper discusses the powers of the states and the federal government to impose taxes on the people. It discusses the notion of concurrent powers and exclusive powers as they relate to taxation. Concurrent powers are those that both the states and federal government share. Exclusive powers are those that only the states or the federal government can exercise. In the case of taxes, the authority of the federal government to levy taxes does not preclude the state governments from doing the same thing since taxation is a concurrent power. The only restriction on the authority of the state governments to levy taxes relates to duties on imports and exports. Congress can levy such taxes, but state governments can only do so with the consent of Congress. Hamilton acknowledges that the concurrent power of taxation could lead to situations in which state governments and the national government impose taxes on the same item, a situation that might be "inexpedient." However, Hamilton asserts that the prudence of governments can be relied on to avoid such situations. It is not necessarily a "direct contradiction of power" for a state government and Congress to impose the same tax.

