§ 440. From this great rule, that the constitution and laws, made in pursuance thereof, are supreme; and that they control the constitutions and laws of the states, and cannot be controlled by them, from this, which maybe deemed an axiom, other auxiliary corollaries may be deduced. In the first place, that, if a power is given to create a thing, it implies a power to preserve it. Secondly, that a power to destroy, if wielded by a different hand, is hostile to and incompatible with this power to create and preserve. Thirdly, that where this repugnancy exists, the authority, which is supreme, must control, and not yield to that, over which it is supreme.[1] Consequently, the inferior power becomes a nullity.[2]
§ 441. But a question of a still more delicate nature may arise; and that is, how far in the exercise of a concurrent power, the actual legislation of congress supersedes the state legislation, or suspends its operation over the subject matter. Are the state laws inoperative only to the extent of the actual conflict; or does the legislation of congress suspend the legislative power of the states over the subject matter? To such an inquiry, probably, no universal answer could be given. It may depend upon the nature of the power, the effect of the actual exercise, and the extent of the subject matter.
§ 442. This may, perhaps, be best illustrated by putting a case, which has been reasoned out by a very learned judge, in his own words:[3] "Congress has- ↑ M'Culloh v.Maryland, 4 Wheat. R. 316, 426.
- ↑ Sturgis v. Crowninshield, 4 Wheat R. 1, 193.
- ↑ Mr. Justice Washington, Houston v. Moore, 5 Wheat. R. 1, 21, 22,
R. 1, 22, 24, 49, 51, 53, 56; Sturgis v. Crowninshield, 2 Wheat. R. 1, 190, 196; Golden v. Prince, 3 Wash. C. C. R. 313, 321; The Federalist, No. 32; Brown v. Maryland, 12 Wheat. R. 419, 449.
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