In attempting to analyze a legal document for it's logical properties, a summary and evaluation needs to preceed. The issue I have chosen is, McCulloch vs. Maryland, a Supreme Court decision made in 1819.
I picked some sites from a search on the subject for background information:
http://www.landmarkcases.org/mcculloch/background3.htmlhttp://www.usnews.com/usnews/documents/docpages/document_page21.htmhttp://legal-dictionary.thefreedictionary.com/McCulloch+vs.+Marylandhttp://odur.let.rug.nl/~usa/D/1801-1825/marshallcases/mar05.htmhttp://www.cinenet.net/~daven/documents.htmlThe conclusion to me is, that according to the Constitution, the power to wage war was reserved to Congress. However, waging war is very expensive and requires monetary recources, so voila, a central bank. But, be careful here, because the conflict of wording is crucial. Power and right are not synonymous nor equivocal. Right implies justification, power implies means.
Thus if, the rights to Congress are given by the Constitution, but the power to use those rights must be gleaned from the economy of all the people in the form of taxation, and trust in delegated authority, where is the burden of proof in the justification of decisions resulting in law?
Sovereignty of jurisdictional domain is always in danger of conflict. Typical case is stated as the issue of two neighbors adjacent but separated by a fence to mark the property line. A storm rolls in and topples a tree. The tree is rooted on one side of the fence, but topples over the fence. Which neighbor has the right to the wood if the issue goes to court?
When John Marshall gave the summary of the Supreme Court's decision, he included this reason:
"The difference is that which always exists, and always must exist, between the action of the whole on a [17 U.S. 316, 436] part, and the action of a part on the whole-between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme."
More transcript from the case:
"M'CULLOCH
v.
STATE OF MARYLAND et al.
February Term, 1819
No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments.
-MARSHALL, Ch. J., delivered the opinion of the court.
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 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 [17 U.S. 316, 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 within 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. -Marshall
The government of the United States has itself a great pecuniary interest in this corporation. Can the states tax this property? Under the confederation, when the national government, not having the power of direct legislation, could not protect its own property by its own laws, it was expressly stipulated, that 'no impositions, duties or restrictions should be laid by any state on the property of the United States.' Is it supposed, that property of the United States is now subject to the power of the state governments, in a greater degree than under the confederation? If this power of taxation be admitted, what is to be its limit? -Webster
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 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 United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a [17 U.S. 316, 436] part, and the action of a part on the whole-between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme.
But if the full application of this argument could be admitted, it might bring into question the right of congress to tax the state banks, and could not prove the rights of the states to tax the Bank of the United States.
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 Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void." -Marshall
Webster's defense:
"3. If, however, the states of this Union have surrendered themselves in this manner, by implication, to the congress of the United States, and to such corporations as the congress, from time to time, may find it 'necessary and proper' to create; if a state may no longer decide, whether a trading association, with independent powers and immunities, shall plant itself in its territory, carry on its business, make a currency and trade on its credit, raising capitals for individuals as fictitious as its own; if all this must be granted, the third and great question in this cause presents itself for consideration; that is, shall this association come there with rights of sovereignty, paramount to the sovereignty of the state, and with privileges possessed by no other persons, corporations or property in the state? in other words, can the bank and its branches, thus established, claim to be exempt from the ordinary and equal taxation of property, as assessed in the states in which they are placed? As this overwhelming invasion of state sovereignty is not warranted by any express clause or grant in the constitution, and never was [17 U.S. 316, 338] imagined by any state that adopted and ratified that constitution, it will be conceded, that it must be found to be necessarily and indissolubly connected with the power to establish the bank, or it must be repelled. The court has always shown a just anxiety to prevent any conflict between the federal and state powers; to construe both so as to avoid an interference, if possible, and to preserve that harmony of action in both, on which the prosperity and happiness of all depend. If, therefore, the right to incorporate a national bank may exist, and be exercised consistently with the right of the state, to tax the property of such bank within its territory, the court will maintain both rights; although some inconvenience or diminution of advantage may be the consequence.
Corporations are but means. They are not ends and objects of government. No government exists for the purpose of creating corporations as one of the ends of its being. They are institutions established to effect certain beneficial purposes; [17 U.S. 316, 326] and, as means, take their character generally from their end and object. They are civil or eleemosynary, public or private, according to the object intended by their creation. They are common means, such as all governments use. The state governments create corporations to execute powers confided to their trust, without any specific authority in the state constitutions for that purpose. There is the same reason that congress should exercise its discretion as to the means by which it must execute the powers conferred upon it. Congress has duties to perform and powers to execute. It has a right to the means by which these duties can be properly and most usefully performed, and these powers executed. Among other means, it has established a bank; and before the act establishing it can be pronounced unconstitutional and void, it must be shown, that a bank has no fair connection with the execution of any power or duty of the national government, and that its creation is consequently a manifest usurpation." -Webster, for the plaintiff in error,3 stated, U.S. Supreme Court
M'CULLOCH v. STATE, 17 U.S. 316 (1819)
Here's the dilemma: Does right prevail over power, or does power prevail over right?
Abuse of power is not a right. Violation of rights is infraction of law. If the law is at logical fault due to error, then power and rights cannot be justified.
In Geometry this similar to a problem of finding a rectangle and a circle of exactly the same area.
(I know that seems remote)
From the KJV Bible regarding similar issues:
45:012:004 For as we have many members in one body, and all members have
not the same office:
46:010:017 For we being many are one bread, and one body: for we are all
partakers of that one bread.
46:012:012 For as the body is one, and hath many members, and all the
members of that one body, being many, are one body:
43:007:051 Doth our law judge any man, before it hear him, and know what
he doeth?
20:013:010 Only by pride cometh contention: but with the well advised is
wisdom.
20:017:013 Whoso rewardeth evil for good, evil shall not depart from his
house.
20:017:014 The beginning of strife is as when one letteth out water:
therefore leave off contention, before it be meddled with.
018:019 A brother offended is harder to be won than a strong city: and
their contentions are like the bars of a castle.
56:003:009 But avoid foolish questions, and genealogies, and contentions,
and strivings about the law; for they are unprofitable and
vain.
