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pursuance of the Constitution, and is a part of the supreme law of the land.”"
Now if it was in the power of congress, as this court has decided, to establish a bank for the general good of the community, or to facilitate the operations of the government, might they not break up a system of slavery, when it is found for the general good to have it done, or when it is found this system is constantly involving the government in expenses, and the country in acts of oppression ? Can one be any greater stretch of power than the other ? If we can build up for the general good, can we not pull down 2 If the people of the land can create, can they not also destroy 2 Or must they, whether they will or no, suffer an evil, and that a constantly growing evil, to increase without let or hinderance? We see not the object of any government, if such be the fact.
But it would seem, from this decision, our fathers did not leave the subject so loose. “They left the question not to mere reason: the people have in express terms decided it, by saying, this Constitution, and laws made in pursuance thereof, shall be the supreme law of the land.” And we would ask if the not making every person free in our land would not be in pursuance of, and consistent with, the provisions of the Constitution. We think it would be hard for any one, consistently with truth, to contradict or deny it; and, while the court say the people have the power of
* Marshall on the Constitution, p. 178.
making the laws, they also claim the power of executing them, as will be observed in the quotations from pages 166 and 174; consequently, if they have the power of abolishing slavery, if the Constitution has not already done it, they would have it in their power to put their laws into execution. If, then, these are facts, and this arguing is correct, and slavery is found to be inconsistent with the Constitution, both in its spirit and its letter, that it is destructive to the best interest of the country, congress, while it possesses the power of declaring it is so, possesses also the power of carrying any law into effect which would be necessary for its overthrow. For, if it possesses the power of establishing a bank because it is convenient to carry on the operations of government, may it not also possess the power of establishing the rights of the members of that government 2 or are personal rights of less consequence than money; and may they be invaded and set at naught, and no objection made, when we may spend all our time in legislating how money may be spent or transmitted by the community? No! The first consideration was, and is, to establish and preserve the individual in his freedom, and then to legislate how to act in that freedom with the greatest benefit to himself and those around him. Having decided these points, then the power of the legislature comes in, with power to carry. into execution its determinations, if not restrained by some express considerations. This seems to us the doctrine held by the court. Again, in the same case, he says, –
“The argument on the part of the State of Maryland is, not that the States may directly resist a law of congress, but that they may exercise their acknowledged power upon it, and that the Constitution leaves them this right, in the confidence they will not abuse it.
“Before we proceed to examine this argument, and 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 right, resting confidently on the interest of the legislature, and on the influence of the constituents over their representatives, to guard them against its abuse. But the means employed by the government have no such security; nor is the right to tax them sustained by the same theory. Those means are not given by the people of a particular State, nor given by the constituents of the legislature which claims the right to tax them, but the people of all the States. They are given by all for the benefit of all, and upon theory should be subjected to that government only which belongs to all.”"
* Marshall on the Constitution, p. 180.
“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 employed by congress to carry into execution powers conferred on that body by the people of the United States ? We think it demonstrable it does not. These powers are not given by the people of a single State; they are given by the people of the United States to a government whose laws, made in pursuance of the Constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them. . “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 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 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 Union, &c.” “But, waiving this theory for the present, let us resume the inquiry, whether this power can be exercised 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 our government the 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 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 assume which would banish that confidence which is essential to all government. “But is this a case of confidence P Would the people of one State trust those of another with the power to control the most insignificant operations of their State governments * We know they would not. Why, then, should we suppose that the pepole of any one State should be willing to trust those of another with the power to control the operations of a government to which they have confided their most important and most valuable interest ? 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 it will not be abused. This, then, is not a case of confidence, and we must consider it as it really is.”
After some more arguments elucidating this point, he comes to this conclusion :
“We are unanimously of the opinion that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void.
“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 Maryland
* Marshall on the Constitution, p. 181.