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The Supremacy Clause

Id. at 405-406. Similarly, later in the opinion Marshall observed:

[T]he constitution and the laws made in pursuance thereof are supreme;… they control the constitution and laws of the respective States, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to depend. These are, 1. That a power to create implies a power to preserve. 2. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. 3. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.

Id. at 426.

Applying the above axioms and corollaries, Marshall concluded that the state’s power to tax could not be exercised against the bank. The power to tax was, in fact, the power to destroy. Therefore to permit a state to exercise that power against an institution created by the federal government would necessarily affirm the authority of an individual state to destroy that institution and to negate the federal government’s ability to preserve it. Such a conclusion would be directly contrary to the principle of federal supremacy that was embodied in the nature and text of the Constitution. Indeed, it would posit state rather than federal supremacy. Speaking more generally, Marshall observed, “[T]he States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared.” Id. at 436.

The decision in Gibbons, five years later, was to the same effect. There the Court, through Chief Justice Marshall, held that the state of New York could not prevent vessels licensed by the federal government from engaging in the coastal trade on the navigable waters of New York. The state law purporting to do so conflicted with a valid federal law and was therefore void. The Court rejected New York’s argument

that, if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by congress in pursuance of the constitution, they affect the subject, and each other, like equal opposing powers.

But the framers of our constitution foresaw this state of things, and provided for it by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of any act, inconsistent with the constitution, is produced by the declaration that the constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the state legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged state powers, interfere with, or are contrary to the laws of congress, made in pursuance of the constitution, or some treaty made under the authority of the United States. In every such case, the act of congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.

22 U.S. (Wheat.) at 210-211 (emphasis supplied).

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