The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
[89] Brown _v._ U. S., 8 Cranch, 110; American Insurance Co. _v._
Canter, 1 Peters, 511; Lamar _ex._ _v._ Browne _et al._, 92 U. S., 187;
Mormon Church _v._ U. S., 136 U. S., 1.
[90] Hepburn _v._ Ellzey, 2 Cranch, 445 (1804).
[91] Barron _v._ Baltimore, 7 Peters, 243 (1833).
[92] Metropolitan R. R. Co. _v._ District of Columbia, 132 U. S., 1
(1889).
[93] Ft. Leavenworth R. R. Co. _v._ Lowe, 114 U. S., 525 (1885).
[94] Art. iv., 3.
[95] Dorr _v._ U. S., 195 U. S., 138 (1904); Hawaii _v._ Mankichi, 190
U. S., 197 (1903); Dooley _v._ U. S., 183 U. S., 151 (1901); Downes
_v._ Bidwell, 182 U. S. (1901); Rasmussen _v._ U. S., 197 U. S., Weems
_v._ U. S., 217 U. S., 349. (But see dissenting opinions in above
cases.)
[96] Downes _v._ Bidwell, _supra_, and cases and laws therein cited and
quoted.
[97] _Idem._
[98] There are powerful dissenting opinions in the various Insular
Cases. The chief objection to the unlimited control of insular
territory by Congress is that Congress itself, by the Constitution,
possesses only limited powers. How can a limited Congress exercise
unlimited powers?
[99] Downes _v._ Bidwell, _supra_. (The Court cites, in confirmation,
the history of Congress and of the British Parliament.)
[100] Bank of Commerce _v._ New York City, 2 Black, 620 (1862) quoting
from McCulloch _v._ Maryland, 4 Wheaton, 431 (1819). The principle is
laid down in the decision that “the sovereignty of a State extends to
everything which exists by its own authority, or is introduced by its
permission; but it does not extend to these means which are employed by
Congress to carry into execution powers conferred on that body by the
people of the United States.” _Id._ 429.
[101] Bank of Commerce _v._ New York City, _supra_.
[102] Loan Association _v._ Topeka, 20 Wallace, 655 (1874), quoting
Cooley on _Constitutional Limitations_, 479.
[103] P. R. Co. _v._ Pennsylvania, 15 Wallace, 300 (1872). The
constitutional use of the taxing power by the United States and by
the several States is examined by Hamilton in _The Federalist_, No.
xxxii.,—the classic contemporaneous exposition of the taxing clauses
of the Constitution. For a judicial examination of these clauses see
Transportation Company _v._ Wheeling, 99 U. S., 273 (1878). The idea
held both by Hamilton and by the Court is that taxation is the exercise
of sovereign power; that “all subjects over which the sovereign power
of a State extends are objects of taxation,” but that “objects over
which it does not extend, as for example, the means and instruments of
the general government, are exempt from taxation.” (The quotation in
Transportation Co. _v._ Wheeling, from McCulloch _v._ Maryland is not
verbally accurate.)
[104] The phrase (_Federalist_, No. lxii.) may be Hamilton’s or
Madison’s.
[105] P. R. Co., _v._ Pennsylvania, 15 Wallace, 300.
[106] This principle applies also in international law.
[107] The principle is established in McCulloch _v._ Maryland.
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