ALTHOUGH I am of opinion that there would be no real danger of
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 adminstrations 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
partial union or consolation, 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 the 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 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 the 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 in expediency 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 preexisting 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.
Signed "PUBLIUS"
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