Vanderbilt Law Review

First Page



Sales and use taxes, since their advent in the early 1930's as significant state revenue producing measures have, like all other state levies, found, themselves subject to certain restrictions imposed by the Constitution of the United States. While the constitutional inhibition of greatest significance for most persons subject to these taxes has probably been the one posed by the commerce clause, or its first cousin the due process clause, an obstacle of no mean proportion to the states has been one not expressly mentioned or even alluded to in the Federal Constitution,' yet this barrier is as much a part of the organic law of the nation as is the commerce clause, the due process clause, or any of our other constitutional components affecting state revenue systems.

We refer of course, as the title of this article would indicate, to the doctrine of governmental immunity as enunciated in an early case decided by the United States Supreme Court, McCulloch v. Maryland. The decision of the Court in that case and the opinion therein by the renowned Chief Justice Marshall, is so deeply rooted in American jurisprudence that it can truly be said to constitute a cornerstone of our constitutional law. Too, it is just as peculiar to the American political system as any of the specific provisions of the Constitution and possibly even more noteworthy, since its foundation lies in the scheme of dual sovereignties evolved by the founding fathers, itself one of the most extraordinary governmental designs ever contrived by political artisans.