526
Opinion of the Court
giving the United States a preference over other unsecured creditors but not over secured creditors.11
There are dicta in our earlier cases that support this contention as well as dicta that tend to refute it. Perhaps the strongest support is found in Justice Story's statement:
"What then is the nature of the priority, thus limited and established in favour of the United States? Is it a right, which supersedes and overrules the assignment of the debtor, as to any property which the United States may afterwards elect to take in execution, so as to prevent such property from passing by virtue of such assignment to the assignees? Or, is it a mere right of prior payment, out of the general funds of the debtor, in the hands of the assignees? We are of opinion that it clearly falls, within the latter description. The language employed is that which naturally would be employed to express such an intent; and it must be strained from its ordinary import, to speak any other." Conard v. Atlantic Ins. Co. of N. Y., 1 Pet. 386, 439 (1828).
Justice Story's opinion that the language employed in the statute "must be strained" to give it any other meaning is entitled to special respect because he was more familiar with 18th-century usage than judges who view the statute from a 20th-century perspective.
We cannot, however, ignore the Court's earlier judgment in Thelusson v. Smith, 2 Wheat., at 426, or the more recent dicta in United States v. Key, 397 U. S., at 324-325. In Thelusson, the Court held that the priority statute gave the United States a preference over the claim of a judgment creditor who had a general lien on the debtor's real property.
11 Although this argument was not presented to the state courts, respondent may defend the judgment on a ground not previously raised. Heckler v. Campbell, 461 U. S. 458, 468-469, n. 12 (1983). We will rarely consider such an argument, however. Ibid.; see also Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 379, n. 5 (1996).
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