MCCULLOCH
v. The STATE OF MARYLAND et al.
17
Mr. Chief Justice MARSHALL delivered the opinion of
the Court.
In the case now to be determined,
the defendant, a sovereign State, denies the obligation of a law enacted by the
legislature of the
The first question made in the
cause is, has Congress power to incorporate a bank?
It has been truly said, that this
can scarcely be considered as an open question, entirely unprejudiced by the
former proceedings of the nation respecting it.
The principle now contested was introduced at a very early period of our
history, has been recognized by many successive legislatures, and has been
acted upon by the judicial department, in cases of peculiar delicacy, as a law
of undoubted obligation.
It will not be denied, that a bold
and daring usurpation might be resisted, after an acquiescence still longer and
more complete than this. But it is
conceived that a doubtful question, one on which human reason may pause, and
the human judgment be suspended, in the decision of which the great principles
of liberty are not concerned, but the respective powers of those who are
equally the representatives of the people, are to be adjusted; if not put at
rest by the practice of the government, ought to receive a considerable
impression from that practice.
[***118] An exposition of the
constitution, deliberately established by legislative acts, on the faith of
which an immense property has been advanced, ought not to be lightly
disregarded.
The power now contested was
exercised by the first Congress elected under the present constitution. [*402]
The bill for incorporating the bank of the
These observations belong to the
cause; but they are not made under the impression that, were the question
entirely new, the law would be found irreconcilable with the constitution.
In discussing this question, the
counsel for the State of Maryland have deemed it of some importance, in the
construction of the constitution, to consider that instrument not as emanating
from the people, but as the act of sovereign and independent States. The powers of the general government, it has
been said, are delegated by the States, who alone are truly sovereign; and must
be exercised in subordination to the States, who alone possess supreme
dominion.
[*403]
It would be difficult to sustain this proposition. The Convention which framed the constitution
was indeed elected by the State legislatures.
But the instrument, when it came from their hands, was a mere proposal,
without obligation, or pretensions to it.
It was reported to the then existing Congress of the
From these Conventions the
constitution derives its whole authority.
The government proceeds directly from the people; is "ordained and
established" in the name of the people; and is declared to be ordained,
"in order to form a more perfect union, establish justice, ensure domestic
tranquility, and secure [*404] the blessings of liberty to themselves and to
[***121] their posterity." The
assent of the States, in their sovereign capacity, is implied in calling a
Convention, and thus submitting that instrument to the people. But the people were at perfect liberty to
accept or reject it; and their act was final.
It required not the affirmance, and could not be negatived, by the State
governments. The constitution, when thus
adopted, was of complete obligation, and bound the State sovereignties.
It has been said, that the people
had already surrendered all their powers to the State sovereignties, and had
nothing more to give. But, surely, the
question whether they may resume and modify the powers granted to government
does not remain to be settled in this country.
Much more might the legitimacy of the general government be doubted, had
it been created by the States. The
powers delegated to the State sovereignties were to be exercised by themselves,
not by a distinct and independent sovereignty, created by themselves. To the formation of a league, such as was the
confederation, the State sovereignties were certainly competent. But when, "in order to form a more
perfect union," it was deemed necessary to change this alliance into an
effective [***122] government,
possessing great and sovereign powers, and acting directly on the people, the
necessity of referring it to the people, and of deriving its powers directly
from them, was felt and acknowledged by all.
The government of the
This government is acknowledged by
all to be one of enumerated powers. The
principle, that it can exercise only the powers granted to it, would seem too
apparent to have required to be enforced by all those arguments which it
enlightened friends, while it was depending before the people, found it necessary
to urge. That principle is now
universally admitted. But the question
respecting the extent of the powers actually granted, is perpetually arising,
and will probably continue to arise, as long as our system shall exist.
In discussing these questions, the
conflicting powers of the general and State governments must be brought into
view, and the supremacy of their [***123]
respective laws, when they are in opposition, must be settled.
If any one proposition could
command the universal assent of mankind, we might expect it would be this --
that the government of the
The government of the
Among the enumerated powers, we do
not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument
which, like the articles of confederation, excludes incidental or implied
powers; and which requires that every thing granted shall be expressly and
minutely described. Even the 10th amendment,
which was framed for the purpose of quieting the excessive jealousies which had
been excited, omits the word "expressly," and declares only that the
powers "not delegated to the United States, nor prohibited to the States,
are reserved to the States or to the people;" thus leaving the question,
whether the particular power which may become the subject of contest has been
delegated to the one government, or prohibited to the other, to depend on a
fair construction of the whole instrument.
The men who drew and adopted this amendment had experienced the
embarrassments resulting from the insertion of this word in the articles [*407]
of confederation, and probably omitted it to avoid those
embarrassments. A constitution, [***125]
to contain an accurate detail of all the subdivisions of which its great
powers will admit, and of all the means by which they may be carried into
execution, would partake of the prolixity of a legal code, and could scarcely
be embraced by the human mind. It would
probably never be understood by the public.
Its nature, therefore, requires, that only its great outlines should be
marked, its important objects designated, and the minor ingredients which
compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers
of the American constitution, is not only to be inferred from the nature of the
instrument, but from the language. Why
else were some of the limitations, found in the ninth section of the 1st [**602]
article, introduced? It is also,
in some degree, warranted by their having omitted to use any restrictive term
which might prevent its receiving a fair and just interpretation. In considering this question, then, we must
never forget, that it is a constitution we are expounding.
Although, among the enumerated
powers of government, we do not find the word "bank" or
"incorporation," we find the great powers to [***126] lay and collect taxes; to borrow money; to
regulate commerce; to declare and conduct a war; and to raise and support
armies and navies. The sword and the
purse, all the external relations, and no inconsiderable portion of the
industry of the nation, are entrusted to its government. It can never be
pretended [*408] that these vast powers draw after them others
of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it
may with great reason be contended, that a government, entrusted with such
ample powers, on the due execution of which the happiness and prosperity of the
nation so vitally depends, must also be entrusted with ample means for their
execution. The power being given, it is
the interest of the nation to facilitate its execution. It can never be their interest, and cannot be
presumed to have been their intention, to clog and embarrass its execution by
withholding the most appropriate means.
Throughout this vast republic, from the St. Croix to the Gulf of Mexico,
from the Atlantic to the Pacific, revenue is to be collected and expended, armies
are to be marched and supported. The
exigencies of the nation may require that the [***127] treasure raised in the north should be
transported to the south, that raised in the east conveyed to the west, or that
this order should be reversed. Is that construction
of the constitution to be preferred which would render these operations
difficult, hazardous, and expensive? Can
we adopt that construction, (unless the words imperiously require it,) which
would impute to the framers of that instrument, when granting these powers for
the public good, the intention of impeding their exercise by withholding a
choice of means? If, indeed, such be the
mandate of the constitution, we have only to obey; but that instrument does not
profess to enumerate the means by which the powers it confers may be executed;
nor does it prohibit the creation of a corporation, [*409]
if the existence of such a being be essential to the beneficial exercise
of those powers. It is, then, the
subject of fair inquiry, how far such means may be employed.
It is not denied, that the powers
given to the government imply the ordinary means of execution. That, for example, of raising revenue, and
applying it to national purposes, is admitted to imply the power of conveying
money from place to place, as [***128]
the exigencies of the nation may require, and of employing the usual
means of conveyance. But it is denied
that the government has its choice of means; or, that it may employ the most
convenient means, if, to employ them, it be necessary to erect a corporation.
On what foundation does this
argument rest? On this alone: The power
of creating a corporation, is one appertaining to sovereignty, and is not
expressly conferred on Congress. This is
true. But all legislative powers appertain
to sovereignty. The original power of giving the law on any subject whatever,
is a sovereign power; and if the government of the Union is restrained from
creating a corporation, as a means for performing its functions, on the single
reason that the creation of a corporation is an act of sovereignty; if the
sufficiency of this reason be acknowledged, there would be some difficulty in
sustaining the authority of Congress to pass other laws for the accomplishment
of the same objects.
The government which has a right
to do an act, and has imposed on it the duty of performing that act, must,
according to the dictates of reason, be allowed
[*410] to select the means; and
those who contend that it [***129] may
not select any appropriate means, that one particular mode of effecting the
object is excepted, take upon themselves the burden of establishing that
exception.
The creation of a corporation, it
is said, appertains to sovereignty. This is admitted. But to what portion of sovereignty does it
appertain? Does it belong to one more
than to another? In
But the constitution of the
The counsel for the State of
Maryland have urged various arguments, to prove that this clause, though in
terms a grant of power, is not so in effect; but is really restrictive of the
general [***132] right, which might
otherwise be implied, of selecting means for executing the enumerated powers.
In support of this proposition,
they have found it necessary to contend, that this clause was inserted for the
purpose of conferring on Congress the power of making laws. That, without it, doubts might be
entertained, whether Congress could exercise its powers in the form of
legislation.
But could this be the object for
which it was inserted? A government is
created by the people, having legislative, executive, and judicial powers. Its legislative powers are vested in a
Congress, which is to consist of a Senate and House of Representatives. Each house may determine the rule of its
proceedings; and it is declared that every bill which shall have passed both
houses, shall, before it becomes a law, be presented to the President of the
But the argument on which most
reliance is placed, is drawn from the peculiar language of this clause. Congress is not empowered by it to make all
laws, which may have relation to the powers conferred on the government, but
such only as may be "necessary and proper" for carrying them into
execution. The word
"necessary," is considered as controlling the whole sentence, and as
limiting the right to pass laws for the execution of the granted powers, to
such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, and
leaves to Congress, in each case, that only which is most direct and simple.
Is it true, that this is the sense
in which the word "necessary" is always used? Does it always import an absolute physical
necessity, so strong, that one an absolute physical necessity, so strong, [***134]
that one thing, to which another may be termed necessary, cannot exist
without that other? We think it does
not. If reference be had to its use, in
the common affairs of the world, or in approved authors, we find that it
frequently imports no more than that one thing is convenient, or useful, or
essential to another. To employ the means
necessary to an end, is generally understood as employing any means calculated
to [*414] produce the end, and not as being confined to
those single means, without which the end would be entirely unattainable. Such is the character of human language, that
no word conveys to the mind, in all situations, one single definite idea; and
nothing is more common than to use words in a figurative sense. Almost all compositions contain words, which,
taken in their rigorous sense, would convey a meaning different from that which
is obviously intended. It is essential
to just construction, that many words which import something excessive, should
be understood in a more mitigated sense -- in that sense which common usage
justifies. The word
"necessary" is of this description.
It has not a fixed character peculiar to itself. It admits of all degrees [***135] of comparison; and is often connected with
other words, which increase or diminish the impression the mind receives of the
urgency it imports. A thing may be necessary, very necessary, absolutely or
indispensably necessary. To no mind
would the same idea be conveyed, by these several phrases. This comment on the word is well illustrated,
by the passage cited at the bar, from the 10th section of the 1st article of
the constitution. It is, we think,
impossible to compare the sentence which prohibits a State from laying
"imposts, or duties on imports or exports, except what may be absolutely
necessary for executing its inspection laws," with that which authorizes
Congress "to make all laws which shall be necessary and proper for
carrying into execution" the powers of the general government, without
feeling a conviction that the convention understood itself to change
materially [*415] the meaning of the word
"necessary," by prefixing the word "absolutely." This word,
then, like others, in used in various senses; and, in its construction, the
subject, the context, the intention of the person using them, are all to be
taken into view.
Let this be done in the case under
consideration. [***136] The subject is the execution of those great
powers on which the welfare of a nation essentially depends. It must have been the intention of those who
gave these powers, to insure, as far as human prudence could insure, their
beneficial execution. This could not be
done by confiding the choice of means to such narrow limits as not to leave it
in the power of Congress to adopt any which might be appropriate, and which
were conducive to the end. This provision is made in a constitution intended to
endure for ages to come, and, consequently, to be adapted to the various crises
of [**604] human affairs. To have prescribed the means by which
government should, in all future time, execute its powers, would have been to
change, entirely, the character of the instrument, and give it the properties
of a legal code. It would have been an
unwise attempt to provide, by immutable rules, for exigencies which, if
foreseen at all, must have been seen dimly, and which can be best provided for
as they occur. To have declared that the
best means shall not be used, but those alone without which the power given
would be nugatory, would have been to deprive the legislature of the capacity
to avail [***137] itself of experience,
to exercise its reason, and to accommodate its legislation to
circumstances. [*416] If we apply this principle of construction to
any of the powers of the government, we shall find it so pernicious in its
operation that we shall be compelled to discard it. The powers vested in Congress may certainly
be carried into execution, without prescribing an oath of office. The power to exact this security for the
faithful performance of duty, is not given, nor is it indispensably necessary.
The different departments may be established; taxes may be imposed and collected;
armies and navies may be raised and maintained; and money may be borrowed,
without requiring an oath of office. It
might be argued, with as much plausibility as other incidental powers have been
assailed, that the Convention was not unmindful of this subject. The oath which might be exacted -- that of
fidelity to the constitution -- is prescribed, and no other can be
required. Yet, he would be charged with
insanity who should contend, that the legislature might not super add, to the
oath directed by the constitution, such other oath of office as its wisdom
might suggest.
So, with respect to the
[***138] whole penal code of the
Take, for example, the power
"to establish post offices and post roads." This power is executed by
the single act of making the establishment.
But, from this has been inferred the power and duty of carrying the mail
along the post road, from one post office to another. And, from this [***139] implied power, has again been inferred the
right to punish those who steal letters from the post office, or rob the mail. It may be said, with some plausibility, that
the right to carry the mail, and to punish those who rob it, is not
indispensably necessary to the establishment of a post office and post
road. This right is indeed essential to
the beneficial exercise of the power, but not indispensably necessary to its
existence. So, of the punishment of the
crimes of stealing or falsifying a record or process of a Court of the
The baneful influence of this
narrow construction on all the operations of the government, and the
absolute [*418] impracticability of maintaining it without
rendering the government incompetent to its great objects, might be illustrated
by numerous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced,
without hesitation, that the power of punishment appertains to sovereignty, [***140]
and may be exercised whenever the sovereign has a right to act, as
incidental to his constitutional powers.
It is a means for carrying into execution all sovereign powers, and may
be used, although not indispensably necessary.
It is a right incidental to the power, and conducive to its beneficial
exercise.
If this limited construction of
the word "necessary" must be abandoned in order to punish, whence is
derived the rule which would reinstate it, when the government would carry its
powers into execution by means not vindictive in their nature? If the word
"necessary" means "needful," "requisite,"
"essential," "conducive to," in order to let in the power
of punishment for the infraction of law; why is it not equally comprehensive
when required to authorize the use of means which facilitate the execution of
the powers of government without the infliction of punishment?"
In ascertaining the sense in which
the word "necessary" is used in this clause of the constitution, we
may derive some aid from that with which it is associated. Congress shall have power "to make all
laws which shall be necessary and proper to carry into execution" the
powers of the government. If the word
"necessary" [***141] was used in that strict and rigorous sense
for which the counsel for the State of [*419] Maryland contend, it would be an
extraordinary departure from the usual course of the human mind, as exhibited
in composition, to add a word, the only possible effect of which is to qualify
that strict and rigorous meaning; to present to the mind the idea of some
choice of means of legislation not straitened and compressed within the narrow
limits for which gentlemen contend.
But the argument which most
conclusively demonstrates the error of the construction contended for by the
counsel for the State of
1st. The clause is placed among the powers of
Congress, not among the limitations on those powers.
[*420]
2nd. Its terms purport to
enlarge, not to diminish the powers vested in the government. In purports to be an additional power, not a
restriction on those already granted. No
reason has been, or can be assigned for thus concealing an intention to narrow
the discretion of the national legislature under words which purport to enlarge
it. The framers of the constitution
wished its adoption, and well knew that it would be endangered by its strength,
not by its weakness. Had they been capable of suing language which would convey
to the eye one idea, and, after deep reflection, impress on the mind another,
they would rather have disguised the grant of power, than its limitation. [***143]
In, then, their intention had been, by this clause, to restrain the free
use of means which might otherwise have been implied, that intention would have
been inserted in another place, and would have been expressed in terms resembling
these. "In carrying into execution
the foregoing powers, and all others," &c. "no laws shall be
passed but such as are necessary and proper." Had the intention been to
make this clause restrictive, it would unquestionably have been so in form as well
as in effect.
The result of the most careful and
attentive consideration bestowed upon this clause is, that if it does not
enlarge, it cannot be construed to restrain the powers of Congress, or to
impair the right of the legislature to exercise its best judgment in the
selection of measures to carry into execution the constitutional powers of the
government. If no other motive for its
insertion can be suggested, a sufficient one is found in the desire to remove all
doubts respecting [*421] the right to legislate on that vast mass of
incidental powers which must be involved in the constitution, if that
instrument be not a splendid bauble.
We admit, as all must admit, that
the powers of the government [***144]
are limited, and that its limits are not to be transcended. But we think the sound construction of the
constitution must allow to the national legislature that discretion, with
respect to the means by which the powers it confers are to be carried into
execution, which will enable that body to perform the high duties assigned to
it, in the manner most beneficial to the people. Let the end be legitimate, let it be within
the scope of the constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist with the
letter and spirit of the constitution, are constitutional.
That a corporation must be
considered as a means not less usual, not of higher dignity, not more requiring
a particular specification than other means, has been sufficiently proved. If we look to the origin of corporations, to
the manner in which they have been framed in that government from which we have
derived most of our legal principles and ideas, or to the uses to which they
have been applied, we find no reason to suppose that a constitution, omitting,
and wisely omitting, to enumerate all the means for carrying into execution the
great powers vested [***145] in
government, ought to have specified this.
Had it been intended to grant this power as one which should be distinct
and independent, to be exercised in any case whatever, it [*422]
would have found a place among the enumerated powers of the government. But being considered merely as a means, to be
employed only for the purpose of carrying into execution the given powers,
there could be no motive for particularly mentioning it.
The propriety of this remark would
seem to be generally acknowledged by the universal acquiescence in the
construction which has been uniformly put on the 3rd section of the 4th article
of the constitution. The power to
"make all needful rules and regulations respecting the territory or other
property belonging to the
If a corporation may be employed
indiscriminately with other means to carry into execution the powers of the government,
no particular reason can be assigned for excluding the [***146] use of a bank, if required for its fiscal
operations. To use one, must be within
the discretion of Congress, if it be an appropriate mode of executing the
powers of government. That it is a
convenient, a useful, and essential instrument in the prosecution of its fiscal
operations, is not now a subject of controversy. All those who have been concerned in the
administration of our finances, have concurred in representing its importance
and necessity; and so strongly have they been felt, that statesmen of the first
class, whose previous opinions
[*423] against it had been
confirmed by every circumstance which can fix the human judgment, have yielded
those opinions to the exigencies of the nation.
Under the confederation, Congress, justifying the measure by its
necessity, transcended perhaps its powers to obtain the advantage of a bank;
and our own legislation attests the universal conviction of the utility of this
measure. The time has passed away when
it can be necessary to enter into any discussion in order to prove the
importance of this instrument, as a means to effect the legitimate objects of
the government.
But, were its necessity less
apparent, none can deny its being [***147]
an appropriate measure; and if it is, the degree of its necessity, as
has been very justly observed, is to be discussed in another place. Should Congress, in the execution of its
powers, adopt measures which are prohibited by the constitution; or should
Congress, under the pretext of executing its powers, [**606]
pass laws for the accomplishment of objects not entrusted to the
government; it would become the painful duty of this tribunal, should a case
requiring such a decision come before it, to say that such an act was not the
law of the land. But where the law is
not prohibited, and is really calculated to effect any of the objects entrusted
to the government, to undertake here to inquire into the degree of its
necessity, would be to pass the line which circumscribes the judicial
department, and to tread on legislative ground.
This court disclaims all pretensions to such a power.
[*424]
After this declaration, it can scarcely be necessary to say, that the
existence of State banks can have no possible influence on the question. No trace is to be found in the constitution
of an intention to create a dependence of the government of the
After the most deliberate
consideration, it is the unanimous and decided opinion of this Court, that the
act to incorporate the Bank of the
The branches, proceeding from the
same stock, and being conducive to the complete accomplishment of the object,
are equally constitutional. It would
have been unwise to locate them in the charter, and it would be unnecessarily
inconvenient to employ the legislative [***149]
power in making those subordinate arrangements. The great duties of the bank are prescribed;
those duties require branches; and the bank itself [*425]
may, we think, be safely trusted with the selection of places where
those branches shall be fixed; reserving always to the government the right to
require that a branch shall be located where it may be deemed necessary.
It being the opinion of the Court,
that the act incorporating the bank is constitutional; and that the power of
establishing a branch in the State of Maryland might be properly exercised by
the bank itself, we proceed to inquire --
2.
Whether the State of
That the power of taxation is one
of vital importance; that it is retained by the States; that it is not abridged
by the grant of a similar power to the government of the Union; that it is to
be concurrently exercised by the two governments: are truths which have never
been denied. But, such is the paramount
character of the constitution, that its capacity to withdraw any subject from
the action of even this power, is admitted.
The States are expressly forbidden to lay any duties on imports
[***150] or exports, except what may be
absolutely necessary for executing their inspection laws. If the obligation of this prohibition must be
conceded -- if it may restrain a State from the exercise of its taxing power on
imports and exports; the same paramount character would seem to restrain, as it
certainly may restrain, a State from such other exercise of this power, as is
in its nature incompatible with, and repugnant to, the constitutional laws of
the Union. A law, absolutely repugnant
to another, as entirely [*426] repeals that other as if express terms of
repeal were used.
On this ground the counsel for the
bank place its claim to be exempted from the power of a State to tax its
operations. There is no express
provision for the case, but the claim has been sustained on a principle which
so entirely pervades the constitution, 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 rending it into shreds.
This great principle is, that the
constitution and the laws made in pursuance thereof are supreme; that they
control the constitution and laws of the respective States, [***151]
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, and on their
application to this case, the cause has been supposed to depend. These are, 1st. that a power to create
implies a power to preserve. 2nd. 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.
These propositions, as abstract
truths, would, perhaps, never be controverted.
Their application to this case, however, has been denied; and, both in
maintaining the affirmative and the negative, a splendor of eloquence, and
strength of argument, seldom, if ever, surpassed, have been displayed.
[*427]
The power of Congress to create, and of course to continue, the bank,
was the subject of the preceding part of this opinion; and is no longer to be
considered as questionable.
That the power of taxing it by the
States may be exercised so as to destroy it, is too obvious to be denied. But taxation is said to [***152] be an absolute power, which acknowledges no
other limits than those expressly prescribed in the constitution, and like
sovereign power of every other description, is trusted to the discretion of
those who use it. But the very terms of
this argument admit that the sovereignty of the State, in the article of
taxation itself, is subordinate to, and may be controlled by the constitution
of the
The argument on the part of the
State of
Before we proceed to examine this
argument, and to subject it to the test of the constitution, we must be
permitted to bestow a few considerations on the nature and extent of this
original right of taxation, which is acknowledged to remain with the States. It is admitted that the power of taxing the
people and their property is essential to the very existence of government, and
may be legitimately exercised on the objects to which it is applicable, to the
utmost extent to which the government may choose to carry it. The only security against the abuse of this
power, is found in the structure of the government itself. In imposing a tax the legislature acts upon
its constituents. This is in general a sufficient security against erroneous
and oppressive taxation.
The people of a State, therefore,
give to their government a right of taxing themselves and their property, and
as the exigencies of government cannot be limited, they prescribe no limits to
the exercise of this [***154] right,
resting confidently on the interest of the legislator, and on the influence of
the constituents over their representative, to guard then against its
abuse. But the means employed by the
government of the
It may be objected to this
definition, that the power of taxation is not confined to the people and
property of a State. It may be exercised
upon every object brought within its jurisdiction.
This is true. But to what source do we trace this
right? It is obvious, that it is an
incident of sovereignty, and is co-extensive with that to which it is an
incident. All subjects over which the
sovereign power of a State extends, are objects of taxation; but those over
which it does not extend, are, upon the soundest principles, exempt from
taxation. This [***155] proposition may
almost be pronounced self-evident.
The sovereignty of a State extends
to every thing which exists by its own authority, or is introduced by its
permission; but does it extend to those means which are employed by Congress to
carry into execution powers conferred on that body by the people of the
If we measure the power of
taxation residing in a State, by the extent of sovereignty which the people of
a single State possess, and can confer on its government, we have an
intelligible standard, applicable
[*430] to every case to which the
power may be applied. We have a
principle which leaves the power of taxing the people and property of a State
unimpaired; which leaves to a State the command of all its resources, and which
places beyond its reach, all those powers which are conferred by the people of
[***156] the United States on the
government of the Union, and all those means which are given for the purpose of
carrying those powers into execution. We
have a principle which is safe for the States, and safe for the
We find, then, on just theory, a
total failure of this original right to tax the means employed by the
government of the
But, waiving this theory for the
present, let us resume the inquiry, whether this power can be exercised [*431]
by the respective States, consistently with a fair construction of the
constitution?
That the power to tax involves the
power to destroy; that the power to destroy may defeat and render useless the
power to create; that there is a plain repugnance, in conferring on one
government a power to control the constitutional measures of another, which
other, with respect to those very measures, is declared to be supreme over that
which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled
by the magic of the word CONFIDENCE. Taxation, it is said, does not necessarily
and unavoidably destroy. To carry it to
the excess of destruction would be an abuse, to presume which, would banish
that confidence which is essential to all government.
But 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. Why, then, should we suppose that the people
of any one State should be willing to trust those [***158] of another with a power to control the
operations of a government to [**608] which they have confided their most important
and most valuable interests? In the
legislature of the
[*432]
If we apply the principle for which the State of
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
[***159] 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.
Gentlemen say, they do not claim
the right to extend State taxation to these objects. They limit their pretensions to
property. But on what principle is this
distinction made? Those who make it have
furnished no reason for it, and the principle for which they contend denies it. They contend that the power of taxation has
no other limit than is found in the 10th section of the 1st article of the
constitution; that, with respect to every thing else, the power of the States
is supreme, and admits of no control. If
this be true, the distinction between property and [*433]
other subjects to which the power of taxation is applicable, is merely
arbitrary, and can never be sustained.
This is not all. If the controlling
power of the States be established; if their supremacy as to taxation be
acknowledged; what is to restrain their exercising this control in any shape
they may please [***160] to give
it? Their sovereignty is not confined to
taxation. That is not the only mode in which it might be displayed. The question is, in truth, a question of
supremacy; and if the right of the States to tax the means employed by the
general government be conceded, the declaration that the constitution, and the
laws made in pursuance thereof, shall be the supreme law of the land, is empty
and unmeaning declamation.
In the course of the argument, the
Federalist has been quoted; and the opinions expressed by the authors of that
work have been justly supposed to be entitled to great respect in expounding
the constitution. No tribute can be paid
to them which exceeds their merit; but in applying their opinions to the cases
which may arise in the progress of our government, a right to judge of their
correctness must be retained; and, to understand the argument, we must examine
the proposition it maintains, and the objections against which it is directed. The subject of those numbers, from which
passages have been cited, is the unlimited power of taxation which is vested in
the general government. The objection to this unlimited power, which the
argument seeks to remove, is stated [***161]
with fullness and clearness. It
is, "that an indefinite power of taxation in the latter (the
government [*434] of the
The objections to the constitution
which are noticed in these numbers, were to the undefined power of the government
to tax, not to the incidental privilege of exempting its own measures from
State taxation. The consequences apprehended from [***162] this undefined power were, that it would
absorb all the objects of taxation, "to the exclusion and destruction of
the State governments." The arguments of the Federalist are intended to
prove the fallacy of these apprehensions; not to prove that the government was
incapable of executing any of its powers, without exposing the means it
employed to the embarrassments of State taxation. Arguments urged against these
objections, and these apprehensions, are to be understood as relating to the
points they [*435] mean to prove. Had the authors of those excellent essays
been asked, whether they contended for that construction of the constitution,
which would place with the reach of the States those measures which the
government might adopt for the execution of its powers; no man, who has read
their instructive pages, will hesitate to admit, that their answer must have been
in the negative.
It has also been insisted, that,
as the power of taxation in the general and State governments is acknowledged
to be concurrent, every argument which would sustain the right of the general
government to tax banks chartered by the States, will equally sustain the right
of the States to tax banks [***163]
chartered by the general government.
But the two cases are not on the
same reason. The people of all the
States have created the general government, and have conferred upon it the general
power of taxation. The people of all the States, and the States themselves, are
represented in Congress, and, by their representatives, exercise this
power. When they tax the chartered
institutions of the States, they tax their constituents; and these taxes must
be uniform. But, when a State taxes the
operations of the government of the
But if the full application of
this argument could be admitted, it might bring into question [***164] the right of Congress to tax the State banks,
and could not prove the right of the States to tax the Bank of the
The Court has bestowed on this
subject its most deliberate consideration.
The result is a conviction that the States have no power, by taxation or
otherwise, to retard, impede, burden, or in any manner control, the operations
of the constitutional laws enacted by Congress to carry into execution the
powers vested in the general government. This is, we think, the unavoidable
consequence of that supremacy which the constitution has declared.
We are unanimously of opinion,
that the law passed by the legislature of
This opinion does not deprive the
States of any resources which they originally possessed. It does not extend to a tax paid by the real
property of the bank, in common with the other real property within the State,
nor to a tax imposed on the interest which the citizens of
JUDGMENT. This cause came on to be heard on the
transcript of the record of the Court of Appeals of the State of