Page:Harvard Law Review Volume 32.djvu/940

904 904 HARVARD LAW REVIEW judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power." ^ If it were really so easy as Marshall here appears to think, the most merciful of critics could hardly condone the wanderings of his successors in the path which he pointed out. With the formula of McCulloch V. Maryland ^ before them, every dispute should have been speedily and unanimously resolved. But Marshall himself was soon to doubt the magic of his pronouncement of 1819. Eight years later in Brown v. Maryland ^ we find him aware that the notion of sovereignty is not the simple solvent that it had previously appeared to be. In 1827 he confesses: "The constitutional prohibition on the States to lay a duty on imports, a prohibition which a vast majority of them must feel an interest in pre- serving, may certainly come in conflict with their acknowledged power to tax persons and property within their territory. The power, and the restriction on it, though quite distinguishable when they do not approach each other, may yet, like the intervening colours between white and black, approach so nearly as to perplex the understanding, as colours perplex the vision in marking the distinction between them. Yet the distinction exists, and must be marked as the cases arise. Till they do arise, it might be premature to state any rule as being universal in its application." ^ Here the great Chief Justice tells us that the line between state power and absence of power is not an easy one to mark. A state tax which from one angle is an exercise of lawful authority may from another angle be an encroachment on the field reserved to the ^ Note 2, supra. « 12 Wheat. (U. S.) 419 (1827). ^ Ibid., 441. Compare Chief Justice Taney in License Cases, 5 How. (U. S.) 504, 574 (1847): "It is unquestionably no easy task to nnark by a certain and definite line the division between foreign and domestic commerce, and to fix the precise point, in relation to every imported article, where the paramount power of Congress terminates, and that of the State begins. They cannot be determined by the laws of Congress or of the States, as neither can by its own legislation enlarge its own powers, or restrict those of the other. And as the Constitution itself does not draw the line, the question is necessarily one for judicial decision, and depending altogether upon the words of the Constitution." That the words of the Constitution have to be supplemented by some- thing extraneous is hinted by the previous recognition that the Constitution itself does not draw the line. How little the words of the Constitution have to do with the prob- lem must be apparent to everyone who has read the judicial opinions which have struggled with its solution.
 * 4 Wheat. (U. S.) 430.