Page:Harvard Law Review Volume 2.djvu/377

 LBQAL ASPECT OF THE SOUTHERtT QUESTION. 359

section of the Constitution, enumerating the powers of Congress, and especially the first clause, conferring the power " to levy and collect taxes . . . and provide for the . . . general wel- fare of the United States,*' was, together with the i8th clause, giving Ae power " to make all laws which shall be necessary and proper for carrying into execution the foregoing powers," the great battle-ground between champions of the different sections.

Representative controversies relating to this section of the Con- stitution are those concerning the power of Congress to levy duties for protection, as well as for revenue, and the power to establish a national bank. The tariff question led to the extreme stand taken by South Carolina, in 1829 and in 1832, that a State could nullify an act of Congress which it deems unconstitutional, thus following out the idea contained in the Virginia and Ken- tucky resolutions of 1798, 99. But the power of Congress in this regard was, nevertheless, asserted, and it was maintained by the President. The bank controversy terminated also in favor of the federal powers. Not only was it decided that Congress could create a bank, but it was also held that a State could not impose any burdens upon the bank by way of taxation or otherwise.^

With the development of the powers of the United States came limitations upon the powers of the States. For instance, they cannot annul a judgment of a federal court ;^ nor grant monopo- lies which interfere with the powers of Congress ; ^ nor rescind their own grants or contracts.* Blow after blow was given to the cherished theories of the South, every stroke tending to establish that, within certain limits, the government of the United States has all the attributes of absolute sovereignty.

The growing importance of the slavery question, however, finally led the South to the view that such sovereignty as the United States possessed was conditional upon the consent of the States. Now, the Constitution divides sovereign powers between the Federal and the State governments. Those belonging to the latter constitute the true "State rights.'* Yet, although State

1 McCulloch V, Md., 4 Wheat. 316 (1819) ; Osborn v. Bank of U. S., 9 Wheat. 736 (1824). « United States v, Peters, 5 Cranch, 115 (1809).

• Gibbons v, Ogden, 9 Wheat, i (1824).

518 (1819).
 * Fletcher v. Peck, 6 Cranch, 87 (1810); Dartmouth College v. Woodward, 4 Wheat