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Federalism’s Quandaries

24 July 2009

In his majority opinion in McCullough v. Maryland, Chief Justice John Marshall explicitly affirmed the supremacy of the federal government within its proper {i. e., constitutionally circumscribed:  “let the end be legitimate, let it be within the scope of the constitution”} spheres.  Those citizens who cleave to mighty, federal assertions of power – primarily modern Democrats, but not only they – naturally think of the decision in McCullough as a sturdy foundation and a favorable precedent.  We have inherited from Marshall’s opinion a jurisprudence that bolsters an ever-expanding congressional ambition based on “necessary and proper” (Article I, Section 8, Clause 18) legislative theory.

We ought to be reminded, therefore, before we gloat too loudly, that the decision in McCullough appeals to another truism that has a great deal of currency in today’s politics.  Marshall, denying the state of Maryland the prerogative to tax a federal bank, famously wrote that “the power to tax involves the power to destroy.”  He could have stated it more strongly, knowing what we now know about career politicians with sky-high ambitions:  the power to tax implicitly confers the power to destroy.  In our case today, however, that truism is turned on its head as Washington turns over every stone and every log in search of another way to tax its subjects (and to borrow against the future proceeds thereof) to a confiscatory extent that now even makes some western Europeans blush.  That is no mean feat.


The question now is this:  can any shred of federalism be salvaged?  Is there any practical – or even theoretical – limit that will constrain today’s steady accretion of federal power at the hands of Pelosi, Reid, Waxman, Frank, Obama, et al.?  And what will become of states who contest further accretions through their governors’ offices?

qb has been tempted to criticize as anti-federalist Senator Thune’s effort to deny states the right to restrict ownership of firearms.  But Thune may be right after all.  Perhaps it IS the federal government’s responsibility to ensure that the states do not abdicate their constitutional responsibility to preserve their citizens’ ability to defend themselves against improper federal encroachments.  Note especially this obscure passage in the 14th Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

What a confusing and ironic state of affairs!


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