Cite as: 514 U. S. 779 (1995)
Thomas, J., dissenting
it").5 For the majority, however, McCulloch apparently turned on the fact that before the Constitution was adopted, the States had possessed no power to tax the instrumentalities of the governmental institutions that the Constitution created. This understanding of McCulloch makes most of Chief Justice Marshall's opinion irrelevant; according to the majority, there was no need to inquire into whether federal law deprived Maryland of the power in question, because the power could not fall into the category of "reserved" powers anyway.6
5 Though cited by the majority, see ante, at 802, Crandall v. Nevada, 6 Wall. 35 (1868), did not deviate from this accepted view of McCulloch. See Crandall, supra, at 48 (observing that McCulloch and a number of other cases "distinctly placed the invalidity of the State taxes on the ground that they interfered with an authority of the Federal government").
6 To support its decision to attribute such surplusage to McCulloch, the majority quotes Marshall's observation that his opinion " 'does not deprive the States of any resources which they originally possessed,' " because the power to tax federal instrumentalities was not encompassed by the States' " 'original right to tax.' " Ante, at 802 (quoting McCulloch, 4 Wheat., at 436, 430). In part, Marshall was simply refuting counsel's argument that it would constitute an "overwhelming invasion of State sovereignty" for Congress to establish a bank that operated within a State but that nonetheless was exempt from state taxes. See id., at 337-339 (argument of counsel) (stressing that "the right to raise revenue" is "the highest attribute of sovereignty" and indeed amounts to "the right to exist"). While Marshall acknowledged that "this original right of taxation" was an "essential" attribute of state sovereignty that Congress could not constitutionally control or invade, he focused more precisely than counsel on "the nature and extent of this original right," id., at 428, and concluded that it did not include the right "to tax the means employed by the government of the Union, for the execution of its powers." Id., at 430. In this respect, then, the Court was referring to the States' "original" powers in much the same context as Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985): The Court was examining whether Congress' exercise of the "privilege of exempting its own measures from State taxation," McCulloch, supra, at 434, had invaded a protected sphere of state sovereignty.
Marshall did go on to argue that the power to tax the operations of the Bank of the United States simply was not susceptible to control by the
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