What are the facts in McCulloch?
Compare: “ever closer union”
We know the U.S. and the E.U. both are founded on the idea the free trade promotes prosperity and interdependence both of which make war less likely (this is also the logic of the W.T.O.)
We know that the E.U. is designed to create “an ever closer union”: to emulate, even institute a European Customs Union and then a European Federation (in my opinion, by way of a confederation, though the BVerG considers it a Staatenverbund, which to me is actually More than a Staatenbund. As may be:
Did the U.S. have the object of creating an “ever closer union”?
Nope!
McCulloch is about the ISSUE of federal powers, specifically<
“Whether the State of Maryland has the power to tax banks not chartered by Maryland”
Is this issue similar to Van Gend? In Van Gend we saw: discriminatory taxation hindering the formation of the European Customs Union.
Sovereignty = Absolute and unlimited power of life and death of all persons and property on the state’s territory, and of all subjects of the state outside of its territory and of the property of the subjects of the state outside the territory of the state. (Ausgangspunkt)
(contemporary sovereignty is being relativized into severable and transferable quanta of state power) (De Lege Ferende – das werdende Recht)
Is taxation an essential power of the sovereign?
Are tax issues usually resolved as non-justiciable “political questions” i.e. unreviewable?
Is Maryland a sovereign state? In 1775? In 1785? In 1820?
In Marbury we saw the enumeration of Supreme Court original jurisdiction was determined by implication to be exclusive.
Yet in McCulloch we see the enumeration of Legislative power can be Extended by implication.
Both of these were interpretative moves. No express text: what to do?
Savigny
I. Text (here, there is none)
II. Context (structure, grammar)
“1. The clause is placed among the powers of Congress, not among the limitations on those powers.
“2. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted.”
III. Legislative history (Federalist Papers)
IV. Teleology
Is legislative power different from judicial jurisdiction?
RULE
“necessary and proper” ‘probably synonymous’
means (mittel)
ends (Zweck)
Notwendig, geeignet
Notwendig
Erforderlich
Reductio argument: “Look what it would lead to” – counterfactual reasoning (“imagine”)
-if the federal government has the power to charter a bank
-if the federal government had No power to charter a bank
-if the state government has the power to tax out of state
-if the state government has no power to tax out of state banks
Enumerated Powers
Supremacy Clause
Next time (Monday)
NLRB,
Helvering
Then Wickard, Walloon Wastes (tuesday)
Read up to page 130.