As to a supposition of repugnancy between the power of taxation in the
States and in the Union, it cannot be supported in that sense which
would be requisite to work an exclusion of the States. It is, indeed,
possible that a tax might be laid on a particular article by a State
which might render it INEXPEDIENT that thus a further tax should be laid
on the same article by the Union; but it would not imply a
constitutional inability to impose a further tax. The quantity of the
imposition, the expediency or inexpediency of an increase on either
side, would be mutually questions of prudence; but there would be
involved no direct contradiction of power. The particular policy of the
national and of the State systems of finance might now and then not
exactly coincide, and might require reciprocal forbearances. It is not,
however a mere possibility of inconvenience in the exercise of powers,
but an immediate constitutional repugnancy that can by implication
alienate and extinguish a pre-existing right of sovereignty.
The necessity of a concurrent jurisdiction in certain cases results from
the division of the sovereign power; and the rule that all authorities,
of which the States are not explicitly divested in favor of the Union,
remain with them in full vigor, is not a theoretical consequence of that
division, but is clearly admitted by the whole tenor of the instrument
which contains the articles of the proposed Constitution.
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