Evening star., 1939-04-02
10th Century Judicial Logic
Amends Marshall's Tax Ruling
Chief Justice in 1919 Bostered Centralized
Government by Words That Became
Shackles of Immunity
Bv John II. Cline.

The Supreme Court has at last shaken
itself free of the consequences OF nine
portentous words which fell from the lips
of the great Chief Justice Marshall IN
the heat of an epochal political struggle
12O years ago. Although opinions may
differ as to just how far the court went
Monday in setting aside the perniclous
doctrine of reciprocal tax immunity
which had been read into the Marshall
decision, there is no doubt that the law
in this respect now stands on much
more logical footing.
This country was still in its uncertain
infancy in 1919 when the Chief Justice
borrowing from the eloquence OF a bril-
liant lawyer, impressed on the law OF
the land the dictum that 'the power to
tax involves the power to destroy"
Marshall was nationalist to the core
one of the most able and courageous
advocates of strong central govern
ment. Arrayed against him were the
Jeffersonians of that day-those who be-
lieved with lively intensity in the SOW
ereignty of the States and who feared
and resented any expansion OF the
powers of the Federal Government.
Chose Assertive Course.
It was in this tense political atmos-
phere, in which Marshall had won his
spurs before ascending the bench, that
the celebrated case of McCulloch VS.
Maryland came to the court. There was
nothing particularly noteworthy in the
facts or essential legal questions involved
in the case In brief. the controversy in
volved an attempt by the State OF Mary
land to impose what was clearly punl-
tive tax on notes issued by branch OF
the Second National Bank. The court
could we'll have disposed of the matter
by deciding simply that the tax was dis
sriminat tory and might we'll have done SO
had not Marshall-perhaps with the
tacit encoura cement of other leading
figures of the time-decided to use the
case as an instrument for asserting his
belief in the supremacy of the powers OF
the Federal Government within its con-
stitutional sphere.
The taking of this momentous step
called for courage of high order, for
the bank was exceedingly unpopular.
The Second National Bank, established
in 1916 after the system of State banks
had failed to function satisfactorily dur
ing the War of 1872, was inexpertly if
not dishonesty managed The cashier
of the Maryland branch James w. Nc
Culloch, whose name has acquired
certain dignity in history from its asso-
citation with Marshall's classic opinion,
was found to have misappropriated
some three million dollars of the insti-
tution's funds. Unwise loans had en-
couraged rash speculations during the
boom years after the war and then,
when the hard times of 1919 gripped
the country, these loans were called with
a ruthlessness which resulted in wide
spread suffering. The Jeffersonians
viewed the bank as a dangerous mo-
nopoly and a number of the States tried
to cripple the institution by imposing
excessive taxes on it.
Eyes Centered on Firm Government.
It may be assumed, then, that when
the Maryland case reached the Supreme
Court, the Chief Justice was fully alive
to the probability that the ruling he had
In mind would be exceedingly unpopular.
But he decided to go through with it.,
and it can be safely said that much of
this country's progress in the interven-
ing years has been due to the fact that
Marshall, his eyes opened to the futility
of a weak Government during the bitter
Revolutionary War winter at Valley
Forge, realized that al possible power
under the Constitution must be lodged
in the Federal Government, and had the
courage to act on that realization
The case was brilliantly presented, the
arguments lasting nine days. In looking
back one wonders whether any of the
counsel realized that Marshall had, for
all practical purposes, decided the case
In advance and, in fact, had probably
written most of his opinion before the
arguments began. All of the oratory
was not lost, however for in the course
of his opening statement for the bank
Daniel Webster first gave voice to the
declaration that power to tax involves
s'' power to destroy"
IL MARSHALL, III QellVeT1llS Ills UeClS1Oil,
appropriated those words to his own use
and gave them an imaginative appeal
which the passage of the years has not
diminished. he is not to be judged too
harshly. For, if he borrowed Webster's S
phraseology in that instance, he also
used language unquestionably his own
which was to be immortalized "A years
later by another great American. In the
course of the long opinion Marshall said
that the American Government is "ern-
phatically, and truly, government of
the people. In form and in substance it
emanates from them Its powers are
granted by them, and are to be exercised
directly on them and for their benefit"
When it is considered that Abraham
Lincoln was an earnest student of Mar
shall's opinions. memorizing some of
them, it is easy to believe that the man
who stood at Gettysburg and spoke of
government of the people, by the peo-
pie. for the people" had found his in
spiration for those noble lines in McCul-
loch VS.. Maryland.
Two Questions Involved.
Marshall really passed on two ques-
tions in deciding the case. The first in
volved the right of Congress to create
such an agency as the bank, a matter
which necessitated an Interpretation Of