law cannot, it is true, confer the power on the states; but it removes a disability to its exercise, which was created by the act of congress."[1]
It is not our intention to comment on these cases; but to offer them as examples of reasoning in favour and against the exclusive power, where a positive repugnancy cannot be predicated.
§ 444. It has been sometimes argued, that when a power is granted to congress to legislate in specific cases, for purposes growing out of the Union, the natural conclusion is, that the power is designed to be exclusive; that the power is to be exercised for the good of the whole by the will of the whole, and consistently with the interests of the whole; and that these objects can no where be so clearly seen, or so thoroughly weighed, as in congress, where the whole nation is represented. But the argument proves too much; and pursued to its full extent, it would establish, that all the powers granted to congress are exclusive, unless where concurrent authority is expressly reserved to the states.[2] For instance, upon this reasoning the power of taxation in congress would annul the whole power of taxation of the states; and thus operate a virtual dissolution of their sovereignty. Such a pretension has been constantly disclaimed.
- ↑ Sturgis v. Crowninshield, 4 Wheat. R. 122, 195, 196. See also Gibbons v. Ogden, 9 Wheat. R. 1, 197, 227, 235, 23S; Houston v. Moore, 5 Wheat. R. 34, 49, 52, 54, 55.—This opinion, that the power to pass bankrupt laws is not exclusive, has not been unanimously adopted by the Supreme Court. Mr. Justice Washington maintained at all times an opposite opinion; and his opinion is known to have been adopted by at least one other of the judges of the Supreme Court. The reasons, on which Mr. J. Washington's opinion is founded, will be found at large in the case of Golden v. Prince, 3 Wash. C. C. R. 313, 322, &c. See also Ogden v. Saunders, 12 Wheat. R. 213, 264, 265, and Gibbons v. Ogden, 9 Wheat. R. 1, 209, 226, 238.
- ↑ Houston v. Moore, 5 Wheat. R. 1, 49, 55, 56.
