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The power to destroy

Posted by Richard on July 3, 2012

Howard Rich at Investor’s Business Daily:

Nearly two centuries ago Daniel Webster stood before the U.S. Supreme Court on behalf of James McCulloch, head of the Baltimore branch of the Second Bank of the United States.

At issue were two basic questions: Did the federal government have the authority to establish a bank? And did states have the authority to tax that bank (and by extension the federal government)?

“An unlimited power to tax involves, necessarily, the power to destroy,” Webster famously argued in opposition to the latter question. Chief Justice John Marshall agreed, parroting Webster’s words almost verbatim in his ruling. “That the power to tax involves the power to destroy … (is) not to be denied,” Marshall wrote.

Yet this “undeniable” premise — first invoked in 1819 on behalf of an onerous expansion of federal authority — has been explicitly rebuked 193 years later in support of an even more onerous expansion of federal authority. In fact the destructive power of taxation has just been extended far beyond a mere list of items subject to duties, imports or levies — it can now actually compel participation in the private sector.

More than at any other time in American history, the power to tax has indeed become the power to destroy — our economy, our liberty and perhaps one day even our lives. Chief Justice John Roberts’ refusal to rein in this destructive force will have immediate and lasting reverberations.


Apologists for Roberts have argued that his opinion cleverly constrained the Commerce Clause — as if he didn’t have the option of making the same finding as part of a majority striking down Obamacare in its entirety, and as if there were no dispute regarding Roberts’ ruling (see numerous July 1-3 posts on the Volokh Conspiracy about whether Roberts’ discussion of the Commerce Clause is a holding or a dictum).

Even if the ruling modestly restricts the federal government’s powers under the Commerce or Necessary and Proper Clause, so what? The power to tax is the power to destroy. And Roberts has given them permission to impose punitive taxes for failing to obey their dictates. Limited government, my ass.

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