Power Exercised by First Congress
The power now contested was exercised by the first Congress
elected under the present constitution.
There was much debate.
It then became law.
Argues that they are a sovereign state and the powers of general
government are delegated by the States, and must be exercised in
subordination to the States.
Basically, saying States possess supreme Dominion.
The Government of the Union, though limited in its power, is
supreme within its sphere of action.
People have said the Constitution is the
Supreme Law of the land.
Members of the State legislatures, and the officers of the
executive and judicial departments of the States,
shall take the oath of
fidelity to [the Constitution].
There is no phrase in the Articles that excludes incidental or
implied powers; and which requires that everything granted shall
be expressly and minutes described.
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.
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
[Article 1, Section 8] Arguments
The happiness and prosperity of the nation depends on the
Governments ability execute powers entrusted to it by the
The constitution gives the Government the right to collect
taxes, to borrow money, to regulate commerce, to declare war,
expend revenue, raise armies, reverse order, etc.
Raising revenue and applying it to the nation purpose, is
admitted to imply the power of conveying money from place to
place, as the exigencies of the nation may require.
Constitutional Law > Congressional Duties & Powers > Necessary &
The Constitution of the United States has not left the right of
Congress to employ the necessary means, for the execution of the
powers conferred on the government, to general reasoning.
To its enumeration of powers is added that of making
all laws which shall be
necessary and proper, for carrying into execution the foregoing
powers, and all other powers vested by the Constitution, in the
government of the United States, or in any department thereof.
Congress is not empowered the make all laws.
Only as may be necessary and proper for carry them into
Necessary means indispensible.
To employ the means necessary to an end, is generally understood
as employing any means calculated to produce the end, and not as
being confined to those single means, without which the end
would be entirely unattainable.
Basically, dont always takes words in the rigorous sense, but
in their common usage.
i.e., A thing may be necessary, very necessary, absolutely or
Absolute is not in front of necessary.
Response the necessary clause
1st. The clause is placed among
the powers of Congress,
among the limitations on those powers.
2nd. Its terms purport to enlarge,
to diminish the powers vested in the government.
In purports to be an additional
power, not a
restriction on those already granted.
Whether the State of Maryland may, without violating the
Constitution, tax that branch?
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.
The States are expressly
forbidden to lay any duties on imports or
exports, except what may be
absolutely necessary for
executing their inspection laws.
The power of the State to tax the bank is exempted.
Supremacy Clause [Article VI]
The constitution and the laws made in pursuance of thereof are
supreme; that they control the constitution and laws of the
respective States, and cannot be controlled by them.
What does this mean
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.
3rd. That where this repugnancy exists, that
authority which is supreme must control,
not yield to that over which it is supreme.
Power to tax would destroy the supremacy clause.
It is the very nature of supremacy to remove all obstacles to
its action, to modify every power vested in subordinate
government, and to exempt it own operation from their influence.
To tax would be an abuse, which would banish the CONFIDENCE
which is ESSENTIAL to ALL government.
Arg Exercise their known of the Constitution
States may exercise their acknowledged powers upon
[constitution], and that the constitution leaves them this right
in the confidence that they will not abuse it.
If the States may tax one instrument, employed by the government
in the execution of its powers, they may tax any and every other
The American people did not design to make government dependent
on the states.
Part of a Whole
States tax their constituents, as in people in their States.
The Government is not a constituent of a State.
We conclude 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.
Does not extend too
This principle does not extend to a
tax paid by the real property of the Bank of the
United States, in common with the
other real property in a particular state, nor to a
tax imposed on the proprietary interest which
the citizens of that state
may hold in this institution, in common with other property of
the same description throughout the state.