Volume IV Part 34 (1/2)

It is, then, ”the unanimous and decided opinion” of the court that the Bank Act is Const.i.tutional. So is the establishment of the branches of the parent bank. Can States tax these branches, as Maryland has tried to do? Of course the power of taxation ”is retained by the states,” and ”is not abridged by the grant of a similar power to the government of the Union.” These are ”truths which have never been denied.”

With sublime audacity Marshall then declares that ”such is the paramount character of the const.i.tution that its capacity to withdraw any subject from the action of even this power, is admitted.”[838] This a.s.sertion fairly overwhelms the student, since the States then attempting to tax out of existence the branches of the National Bank did not admit, but emphatically denied, that the National Government could withdraw from State taxation any taxable subject whatever, except that which the Const.i.tution itself specifically withdraws.

”The States,” argues Marshall, ”are expressly forbidden” to tax imports and exports. This being so, ”the same paramount character would seem to restrain, as it certainly may restrain, a state from such other exercise of this [taxing] power, as is in its nature incompatible with, and repugnant to, the const.i.tutional laws of the Union. A law, absolutely repugnant to another, as entirely repeals that other as if express terms of repeal were used.”

In this fas.h.i.+on Marshall holds, in effect, that Congress can restrain the States from taxing certain subjects not mentioned in the Const.i.tution as fully as though those subjects were expressly named.

It is on this ground that the National Bank claims exemption ”from the power of a state to tax its operations.” Marshall concedes that ”there is no express provision [in the Const.i.tution] for the case, but the claim has been sustained on a principle which so entirely pervades the const.i.tution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it without rendering it into shreds.”[839]

This was, indeed, going far--the powers of Congress placed on ”a principle” rather than on the language of the Const.i.tution. When we consider the period in which this opinion was given to the country, we can understand--though only vaguely at this distance of time--the daring of John Marshall. Yet he realizes the extreme radicalism of the theory of Const.i.tutional interpretation he is thus advancing, and explains it with scrupulous care.

”This great principle is that the const.i.tution and the laws made in pursuance thereof are supreme; that they control the const.i.tution and laws of the respective states, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which ... the cause is supposed to depend.”[840]

That ”cause” was not so much the one on the docket of the Supreme Court, ent.i.tled M'Culloch _vs._ Maryland, as it was that standing on the docket of fate ent.i.tled Nationalism _vs._ Localism. And, although Marshall did not actually address them, everybody knew that he was speaking to the disunionists who were increasing in numbers and boldness. Everybody knew, also, that the Chief Justice was, in particular, replying to the challenge of the Virginia Republican organization as given through the Court of Appeals of that State.[841]

The corollaries which Marshall deduced from the principle of National supremacy were: ”1st. That a power to create implies a power to preserve. 2d. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. 3d. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.”[842]

It is ”too obvious to be denied,” continues Marshall that, if permitted to exercise the power, the States can tax the Bank ”so as to destroy it.” The power of taxation is admittedly ”sovereign”; but the taxing power of the States ”is subordinate to, and may be controlled by the const.i.tution of the United States. How far it has been controlled by that instrument must be a question of construction. In making this construction, no principle not declared can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments as to exempt its own operations from their own influence.

This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it [the principle of National supremacy] in view while construing the const.i.tution.”[843]

Unlimited as is the power of a State to tax objects within its jurisdiction, that State power does not ”extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States ... powers ... given ... to a government whose laws ... are declared to be supreme.... The right never existed [in the States] ... to tax the means employed by the government of the Union, for the execution of its powers.”[844]

Regardless of this fact, however, can States tax instrumentalities of the National Government? It cannot be denied, says Marshall, that ”the power to tax involves the power to destroy; that the power to destroy may defeat ... the power to create; that there is a plain repugnance, in conferring on one government a power to control the const.i.tutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control.”[845]

Here Marshall permits himself the use of sarcasm, which he dearly loved but seldom employed. The State Rights advocates insisted that the States can be trusted not to abuse their powers--confidence must be reposed in State Legislatures and officials; they would not destroy needlessly, recklessly. ”All inconsistencies are to be reconciled by the magic of the word CONFIDENCE,” says Marshall. ”But,” he continues, ”is this a case of 'confidence'? Would the people of any one state trust those of another with a power to control the most insignificant operations of their state government? We know they would not.”

By the same token the people of one State would never consent that the Government of another State should control the National Government ”to which they have confided the most important and most valuable interests.

In the legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence.”[846]

The State Rights theory is ”capable of arresting all the measures of the government, and of prostrating it at the foot of the states.” Instead of the National Government being ”supreme,” as the Const.i.tution declares it to be, ”supremacy” would be transferred ”in fact, to the states”; for, ”if the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument.

They may tax the mail; they may tax the mint; they may tax patent-rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states.”

The whole question is, avows Marshall, ”in truth, a question of supremacy.” If the anti-National principle that the States can tax the instrumentalities of the National Government is to be sustained, then the declaration in the Const.i.tution that it and laws made under it ”shall be the supreme law of the land, is empty and unmeaning declamation.”[847]

Maryland had argued that, since the taxing power is, at least, ”concurrent” in the State and National Governments, the States can tax a National bank as fully as the Nation can tax State banks. But, remarks Marshall, ”the two cases are not on the same reason.” The whole American people and all the States are represented in Congress; when they tax State banks, ”they tax their const.i.tuents; and these taxes must be uniform. But, when a state taxes the operations of the government of the United States, it acts upon inst.i.tutions created, not by their own const.i.tuents, but by people over whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves.

”The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole--between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme.... The states have no power, by taxation or otherwise, to r.e.t.a.r.d, impede, burden, or in any manner control the operations of the const.i.tutional laws enacted by Congress to carry into execution the powers vested in the general government.”[848]

For these reasons, therefore, the judgment of the Supreme Court was that the Maryland law taxing the Baltimore branch of the National Bank was ”contrary to the const.i.tution ... and void”; that the judgment of the Baltimore County Court against the branch bank ”be reversed and annulled,” and that the judgment of the Maryland Court of Appeals affirming the judgment of the County Court also ”be reversed and annulled.”[849]

In effect John Marshall thus rewrote the fundamental law of the Nation; or, perhaps it may be more accurate to say that he made a written instrument a living thing, capable of growth, capable of keeping pace with the advancement of the American people and ministering to their changing necessities. This greatest of Marshall's treatises on government may well be ent.i.tled the ”Vitality of the Const.i.tution.”

Story records that Marshall's opinion aroused great political excitement;[850] and no wonder, since the Chief Justice announced, in principle, that Congress had sufficient power to ”emanc.i.p.ate every slave in the United States” as John Randolph declared five years later.[851]

Roane, Ritchie, Taylor, and the Republican organization of Virginia had antic.i.p.ated that the Chief Justice would render a Nationalist opinion; but they were not prepared for the bold and crus.h.i.+ng blows which he rained upon their fanatically cherished theory of Localism. As soon as they recovered from their surprise and dismay, they opened fire from their heaviest batteries upon Marshall and the National Judiciary. The way was prepared for them by a preliminary bombardment in the _Weekly Register_ of Hezekiah Niles.

This periodical had now become the most widely read and influential publication in the country; it had subscribers from Portland to New Orleans, from Savannah to Fort Dearborn. Niles had won the confidence of his far-flung const.i.tuency by his honesty, courage, and ability. He was the prototype of Horace Greeley, and the _Register_ had much the same hold on its readers that the _Tribune_ came to have thirty years later.

In the first issue of the _Register_, after Marshall's opinion was delivered, Niles began an attack upon it that was to spread all over the land. ”A deadly blow has been struck at the _sovereignty of the states_, and from a quarter so far removed from the people as to be hardly accessible to public opinion,” he wrote. ”The welfare of the union has received a more dangerous wound than fifty _Hartford_ conventions ...

could inflict.” Parts of Marshall's opinion are ”_incomprehensible_. But perhaps, as some people tell us of what _they_ call the _mysteries_ of religion, the _common people_ are not to understand them, such things being reserved only for the _priests_!!”[852]