The Same Subject Continued (No. 33)

Federalist number 33 brings us to another analysis of the federal power to tax. Yes, I know these are the ones you all skipped back in school, but seriously what affects you more in your daily life: the role of factions, or the amount Uncle Sam takes out of your paycheck? That's what I thought: so pay attention!

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This essay actually is, despite it's title, not a continuation of the previous essay on taxation. Indeed, Hamilton spends most of his time discussing the so-called "necessary and proper clause" of the Constitution. Anti-Federalists were scared silly over the idea that the federal government might "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States...."

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As Hamilton explains, this is no big deal. "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." In fact, he writes, it wouldn't even matter if the clause was removed altogether. After all, the Constitution grants certain powers, and therefore implicitly grants the government the power to pass laws to carry out the powers it has been granted. This clause just makes the implicit explicit.
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Maybe so, but if it's so innocuous, why bother to include it at all? Hamilton has an answer there, too. "The answer is," he writes, "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."
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So, they were just making sure. But what it the feds, ignoring the restrictions of "necessary" and "proper," make laws that are unnecessary and improper? What then, Hamilton?
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No worries, he says, the people won't allow it. Remember that in those days the Constitution's authors had no idea that courts would some day strike down legislation as "unconstitutional." No, judicial review was not yet a twinkle in John Marshall's eye. What Hamilton had in mind instead was that "[i]f 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."
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You're probably thinking "isn't it better that we can go to court now instead of having to rise up in rebellion everytime the government oversteps its constitutional bounds?" Well, if you trust the courts to protect you, let me refer you to the judicial farce called Wickard v. Filburn. In this case, the government thought it was a necessary and proper use of its powers under the Interstate Commerce Clause to require that a farmer be banned from growing wheat on his farm, which he fed to his animals. The Court found that this was quite necessary and proper. I wonder what the people would say.
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So, I think Hamilton's pretty much right on this one. The necessary-and-proper clause isn't the problem. The problem is a government that has forgotten the meaning of the words "necessary and proper," and a people that has forgotten how to remind them.