This topic has had some parallel in the area of intergovernmental tax immunities. John Marshall was of the opinion that the judiciary could not review tax rates. Accordingly he regarded the power to tax as the power to destroy. For that reason, in McCulloch v. Maryland he initiated tradition that grew into the law of intergovernmental tax immunities. Holmes signaled the dealth knell of the doctrine when he added as a tag line to the "power to tax is the power to destroy" aphorism "not while this Court sits." His comment is part of the rise of "reasonableness" review in which courts review both the existence of governmental power and its exerercise. In other words, legal norms on the subject have evolved over time as conceptions of the judicial role (and many other things) have changed.
Stephen Siegel DePaul University College of Law
