Page:Harvard Law Review Volume 32.djvu/965

929 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 929 state taxation which falls indirectly on the federal borrowing power are satisfactorily explained on the economic ground that they have not hampered that borrowing power. There is ample economic justi- fication for the cases which have restrained the states from laying discriminatory taxes on United States bonds. For the other re- strictions which the Supreme Court has placed upon the states we must be content with political rather than with economic reasons. In choosing between competing political considerations, much depends on personal predilections. Two of Marshall's colleagues did not share his views that United States bonds must be exempt from state taxation. What Marshall's doctrine achieved was a protective tariff in favor of the infant industry of national credit. His fears that the nation might be destroyed if the view of the dissent had prevailed must be regarded as extravagant. But this does not question the fundamental wisdom of his judgment, particularly at the time when it was rendered. Congress plainly believes that the judgment is as sound to-day, since it demands the continuance of the protection which Marshall decreed. It is difficult to quarrel with the position that the powers of the nation shall be immune from the direct touch of the states. In determining the constitu- tionahty of state taxation which falls directly on federal instru- mentalities, we can readily forego nice analysis as to its economic effects. But an understanding of those effects is essential to a proper evaluation of the decisions which permit state taxation that falls indirectly on those same instrumentalities. Distinctions between direct and indirect effect which seem unsubstantial, when abstracted from the complete situation in which they play their part, are found to be useful implements for reaching desirable results. In permitting indirect encroachment on federal authority by the taxing powers of the states, the Supreme Court has been wise in its judgments. If its conclusions deserve more praise than does some of the reasoning by which they have been supported, the phenomenon is not peculiar to the particular problem which we have been considering. The explanation of the unsatisfactory character of so much of the judicial reasoning here and elsewhere is easily discovered. Deci- sions which are dictated by the necessity of making a wise practical choice between competing considerations are seldom placed frankly