7: The Menace Of State Rights
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Marshall's reading of the Constitution may be summarized in a
phrase: it transfixed State Sovereignty with a two-edged sword,
one edge of which was inscribed "National Supremacy," and the
other "Private Rights." Yet State Sovereignty, ever reanimated by
the democratic impulse of the times, remained a serpent which was
scotched but not killed. To be sure, this dangerous enemy to
national unity had failed to secure for the state Legislatures
the right to interpret the Constitution with authoritative
finality; but its argumentative resources were still far from
exhausted, and its political resources were steadily increasing.
It was still capable of making a notable resistance even in
withdrawing itself, until it paused in its recoil and flung
itself forward in a new attack.
The connecting link between the Supreme Court and the state
courts has already been pointed out to be Section XXV of the Act
of 1789 organizing the Federal Judiciary.1 This section provides,
in effect, that when a suit is brought in a state court under a
state law, and the party against whom it is brought claims some
right under a national law or treaty or under the Constitution
itself, the highest state court into which the case can come must
either sustain such a claim or consent to have its decision
reviewed, and possibly reversed, by the Supreme Court. The
defenders of State Rights at first applauded this arrangement
because it left to the local courts the privilege of sharing a
jurisdiction which could have been claimed exclusively by the
Federal Courts. But when State Rights began to grow into State
Sovereignty, a different attitude developed, and in 1814 the
Virginia Court of Appeals, in the case of Hunter vs. Martin2,
pronounced Section XXV void, though, in order not to encourage
the disloyal tendencies then rampant in New England, the decision
was not published until after the Treaty of Ghent, in February,
1815.
The head and front of the Virginia court at this time was Spencer
Roane, described as "the most powerful politician in the State,"
an ardent Jeffersonian, and an enemy of Marshall on his own
account, for had Ellsworth not resigned so inopportunely, late in
1800, and had Jefferson had the appointment of his successor,
Roane would have been the man. His opinion in Hunter vs. Martin
disclosed personal animus in every line and was written with a
vehemence which was more likely to discomfit a grammarian than
its designed victims; but it was withal a highly ingenious plea.
At one point Roane enjoyed an advantage which would not be his
today when so much more gets into print, for the testimony of
Madison's Journal, which was not published till 1840, is flatly
against him on the main issue. In 1814, however, the most nearly
contemporaneous evidence as to the intention of the framers of
the Constitution was that of the "Federalist," which Roane
stigmatizes as "a mere newspaper publication written in the heat
and fury of the battle," largely by "a supposed favorer of a
consolidated government." This description not only overlooks the
obvious effort of the authors of the "Federalist" to allay the
apprehensions of state jealousy but it also conveniently ignores
Madison's part in its composition. Indeed, the enfant terrible of
State Rights, the Madison of 1787-88, Roane would fain conceal
behind the Madison of ten years later; and the Virginia
Resolutions of 1798 and the Report of 1799 he regards the
earliest "just exposition of the principles of the Constitution."
To the question whether the Constitution gave "any power to the
Supreme Court of the United States to reverse the judgment of the
supreme court of a State," Roane returned an emphatic negative.
His argument may be summarized thus: The language of Article III
of the Constitution does not regard the state courts as composing
a part of the judicial organization of the General Government;
and the States, being sovereign, cannot be stripped of their
power merely by implication. Conversely, the General Government
is a government over individuals and is therefore expected to
exercise its powers solely through its own organs. To be sure,
the judicial power of the United States extends to "all cases
arising" under the Constitution and the laws of the United
States. But in order to come within this description, a case must
not merely involve the construction of the Constitution or laws
of the United States; it must have been instituted in the United
States courts, and not in those of another Government. Further,
the Constitution and the acts of Congress "in pursuance thereof"
are "the supreme law of the land," and "the judges in every
State" are "bound thereby, anything in the Constitution or laws
of any State to the contrary notwithstanding." But they are bound
as state judges and only as such; and what the Constitution is,
or what acts of Congress are "in pursuance" of it, is for them to
declare without any correction or interference by the courts of
another jurisdiction. Indeed, it is through the power of its
courts to say finally what acts of Congress are constitutional
and what are not, that the State is able to exercise its right of
arresting within its boundaries unconstitutional measures of the
General Government. For the legislative nullification of such
measures proposed by the Virginia and Kentucky resolutions is
thus substituted judicial nullification by the local judiciaries.
In Martin vs. Hunter's Lessee,3 which was decided in February,
1816, Story, speaking for the Court, undertook to answer Roane.
Roane's major premise he met with flat denial: "It is a mistake,"
he asserts, "that the Constitution was not designed to operate
upon States in their corporate capacities. It is crowded with
provisions which restrain or annul the sovereignty of the States
in some of the highest branches of their prerogatives." The
greater part of the opinion, however, consisted of a minute
examination of the language of Article III of the Constitution.
In brief, he pointed out that while Congress "may...establish"
inferior courts and, therefore, may not, it was made imperative
that the judicial power of the United States "shall extend to
all cases arising...under" the Constitution and acts of Congress.
If, therefore, Congress should exercise its option and not
establish inferior courts, in what manner, he asked, could the
purpose of the Constitution be realized except by providing
appeals from the state courts to the United States Supreme Court?
But more than that, the practical consequences of the position
taken by the Virginia Court of Appeals effectually refuted it.
That there should be as many versions of the Constitution, laws,
and treaties as there are States in the Union was certainly never
intended by the framers, nor yet that plaintiffs alone should say
when resort should be had to the national tribunals, which were
designed for the benefit of all.
If Story's argument is defective at any point, it is in its
failure to lay down a clear definition of "cases arising under
this Constitution," and this defect in constitutional
interpretation is supplied five years later in Marshall's opinion
in Cohens vs. Virginia.4 The facts of this famous case were as
follows: Congress had established a lottery for the District of
Columbia, for which the Cohens had sold tickets in Virginia. They
had thus run foul of a state law prohibiting such transactions
and had been convicted of the offense in the Court of Quarterly
Sessions of Norfolk County and fined one hundred dollars. From
this judgment they were now appealing under Section XXV.
Counsel for the State of Virginia again advanced the principles
which had been developed by Roane in Hunter vs. Martin but urged
in addition that this particular appeal rendered Virginia a
defendant contrary to Article XI of the Amendments. Marshall's
summary of their argument at the outset of his opinion is
characteristic: "They maintain," he said, "that the nation does
not possess a department capable of restraining peaceably, and by
authority of law, any attempts which may be made by a part
against the legitimate powers of the whole, and that the
government is reduced to the alternative of submitting to such
attempts or of resisting them by force. They maintain that the
Constitution of the United States has provided no tribunal for
the final construction of itself or of the laws or treaties of
the nation, but that this power must be exercised in the last
resort by the courts of every State in the Union. That the
Constitution, laws, and treaties may receive as many
constructions as there are States; and that this is not a
mischief, or, if a mischief, is irremediable."
The cause of such absurdities, Marshall continued, was a
conception of State Sovereignty contradicted by the very words of
the Constitution, which assert its supremacy, and that of all
acts of Congress in pursuance of it, over all conflicting state
laws whatsoever. "This," he proceeded to say, "is the
authoritative language of the American People, and if gentlemen
please, of the American States. It marks, with lines too strong
to be mistaken, the characteristic distinction between the
Government of the Union and those of the States. The General
Government, though limited as to its objects, is supreme with
respect to those objects. This principle is a part of the
Constitution, and if there be any who deny its necessity, none
can deny its authority." Nor was this to say that the
Constitution is unalterable. "The people make the Constitution,
and the people can unmake it. It is the creature of their own
will, and lives only by their will. But this supreme and
irresistible power to make or unmake resides only in the whole
body of the people, not in any subdivision of them. The attempt
of any of the parts to exercise it is usurpation, and ought to be
repelled by those to whom the people have delegated their power
of repelling it."
Once Marshall had swept aside the irrelevant notion of State
Sovereignty, he proceeded with the remainder of his argument
without difficulty. Counsel for Virginia had contended that "a
case arising under the Constitution or a law must be one in which
a party comes into court to demand something conferred on him by
the Constitution or a law"; but this construction Marshall held
to be "too narrow." "A case in law or equity consists of the
right of the one party as well as of the other, and may truly be
said to arise under the Constitution or a law of the United
States whenver its correct decision depends on the Consitution of either." From this it followed that Section XXV was a measure
necessary and proper for extending the judicial power of the
United States appellately to such cases whenever they were first
brought in a state court. Nor did Article XI of the Amendments
nullify the power thus conferred upon the Court in a case which
the State itself had instituted, for in such a case the appeal
taken to the national tribunal was only another stage in an
action "begun and prosecuted," not against the State, but by the
State. The contention of Virginia was based upon the assumption
that the Federal and the State Judiciaries constituted
independent systems for the enforcement of the Constitution, the
national laws, and treaties, and such an assumption Marshall held
to be erroneous. For the purposes of the Constitution the United
States "form a single nation," and in effecting these purposes
the Government of the Union may "legitimately control all
individuals or governments within the American territory."
"Our opinion in the Bank Case," Marshall had written Story from
Richmond in 1819, a few weeks after M'Culloch vs. Maryland, "has
roused the sleeping spirit of Virginia, if indeed it ever
sleeps." Cohens vs. Virginia, in 1821, produced an even more
decided reaction. Jefferson, now in retirement, had long since
nursed his antipathy for the Federal Judiciary to the point of
monomania. It was in his eyes "a subtle corps of sappers and
miners constantly working underground to undermine our
confederated fabric"; and this latest assault upon the rights of
the States seemed to him, though perpetrated in the usual way,
the most outrageous of all: "An opinion is huddled up in
conclave, perhaps by a majority of one, delivered as if
unanimous, and with the silent acquiescence of lazy or timid
associates, by a crafty chief judge, who sophisticates the law to
his own mind by the turn of his own reasoning."
Roane, Jefferson's protege, was still more violent and wrote a
series of unrestrained papers at this time in the Richmond
"Enquirer," under the pseudonym "Algernon Sidney." Alluding to
these, Marshall wrote Story that "their coarseness and malignity
would designate the author of them if he was not avowed."
Marshall himself thought to answer Roane, but quickly learned
that the Virginia press was closed to that side of the question.
He got his revenge, however, by obtaining the exclusion of
Roane's effusions from Hall's "Law Journal," an influential legal
periodical published in Philadelphia. But the personal aspect of
the controversy was the least important. "A deep design,"
Marshall again wrote his colleague, "to convert our Government
into a mere league of States has taken hold of a powerful and
violent party in Virginia. The attack upon the judiciary is in
fact an attack upon the Union." Nor was Virginia the only State
where this movement was formidable, and an early effort to repeal
Section XXV was to be anticipated.
That the antijudicial movement was extending to other States was
indeed apparent. The decision in Sturges vs. Crowinshield5 left
for several years the impression that the States could not pass
bankruptcy laws even for future contracts and consequently
afforded a widespread grievance. Ohio had defied the ruling in
M'Culloch vs. Maryland, and her Treasurer was languishing in jail
by the mandate of the Federal Circuit Court. Kentucky had a still
sharper grievance in the decision in Green vs. Biddle,6 which
invalidated a policy she had been pursuing for nearly a quarter
of a century with reference to squatters' holdings; and what made
the decision seem the more outrageous was the mistaken belief
that it had represented the views of only a minority of the
justices.
The Legislatures of the aggrieved States were soon in full hue
and cry at the heels of the Court; and from them the agitation
quickly spread to Congress.7 On December 12, 1821, Senator
Johnson of Kentucky proposed an amendment to the Constitution
which was intended to substitute the Senate for the Supreme Court
in all constitutional cases. In his elaborate speech in support
of his proposition, Johnson criticized at length the various
decisions of the Court but especially those grounded on its
interpretation of the "obligation of contracts" clause. More than
that, however, he denied in toto the rights of the Federal Courts
to pass upon the constitutionality either of acts of Congress or
of state legislative measures. So long as judges were confined to
the field of jurisprudence, the principles of which were
established and immutable, judicial independence was all very
well, said Johnson, but "the science of politics was still in its
infancy"; and in a republican system of government its
development should be entrusted to those organs which were
responsible to the people. Judges were of no better clay than
other folk. "Why, then," he asked, "should they be considered any
more infallible, or their decisions any less subject to
investigation and revision?" Furthermore, "courts, like cities,
and villages, or like legislative bodies, will sometimes have
their leaders; and it may happen that a single individual will be
the prime cause of a decision to overturn the deliberate act of a
whole State or of the United States; yet we are admonished to
receive their opinions as the ancients did the responses of the
Delphic oracle, or the Jews, with more propriety, the
communications from Heaven delivered by Urim and Thummim to the
High Priest of God's chosen people."
For several years after this, hardly a session of Congress
convened in which there was not introduced some measure for the
purpose either of curbing the Supreme Court or of curtailing
Marshall's influence on its decisions. One measure, for example,
proposed the repeal of Section XXV; another, the enlargement of
the Court from seven to ten judges; another, the requirement that
any decision setting aside a state law must have the concurrence
of five out of seven judges; another, the allowance of appeals to
the Court on decisions adverse to the constitutionality of state
laws as well as on decisions sustaining them. Finally, in
January, 1826, a bill enlarging the Court to ten judges passed
the House by a vote of 132 to 27. In the Senate, Rowan of
Kentucky moved an amendment requiring in all cases the
concurrence of seven of the proposed ten judges. In a speech
which was typical of current criticism of the Court he bitterly
assailed the judges for the protection they had given the Bank—
that "political juggernaut," that "creature of the perverted
corporate powers of the Federal Government"—and he described the
Court itself as "placed above the control of the will of the
people, in a state of disconnection with them, inaccessible to
the charities and sympathies of human life." The amendment
failed, however, and in the end the bill itself was rejected.
Yet a proposition to swamp the Court which received the approval
of four-fifths of the House of Representatives cannot be lightly
dismissed as an aberration. Was it due to a fortuitous
coalescence of local grievances, or was there a general
underlying cause? That Marshall's principles of constitutional
law did not entirely accord with the political and economic life
of the nation at this period must be admitted. The Chief Justice
was at once behind his times and ahead of them. On the one hand,
he was behind his times because he failed to appreciate
adequately the fact that freedom was necessary to frontier
communities in meeting their peculiar problems—a freedom which
the doctrine of State Rights promised them—and so he had roused
Kentucky's wrath by the pedantic and, as the Court itself was
presently forced to admit, unworkable decision in Green vs.
Biddle. Then on the other hand, the nationalism of this period
was of that negative kind which was better content to worship the
Constitution than to make a really serviceable application of the
national powers. After the War of 1812 the great and growing task
which confronted the rapidly expanding nation was that of
providing adequate transportation, and had the old federalism
from which Marshall derived his doctrines been at the helm, this
task would undoubtedly have been taken over by the National
Government. By Madison's veto of the Cumberland Road Bill,
however, in 1816, this enterprise was handed over to the States;
and they eagerly seized upon it after the opening of the Erie
Canal in 1825 and the perception of the immense success of the
venture. Later, to be sure, the panic of 1837 transferred the
work of railroad and canal building to the hands of private
capital but, after all, without altering greatly the
constitutional problem. For with corporations to be chartered,
endowed with the power of eminent domain, and adequately
regulated, local policy obviously called for widest latitude.
Reformers are likely to count it a grievance that the courts do
not trip over themselves in an endeavor to keep abreast with what
is called "progress." But the true function of courts is not to
reform, but to maintain a definite status quo. The Constitution
defined a status quo the fundamental principles of which Marshall
considered sacred. At the same time, even his obstinate loyalty
to "the intentions of the framers" was not impervious to facts
nor unwilling to come to terms with them, and a growing number of
his associates were ready to go considerably farther.
While the agitation in Congress against the Court was at its
height, Marshall handed down his decision in Gibbons vs. Ogden,
and shortly after, that in Osborn vs. United States Bank.8 In the
latter case, which was initiated by the Bank, the plaintiff in
error, who was Treasurer of the State of Ohio, brought forward
Article XI of the Amendments to the Constitution as a bar to the
action, but Marshall held that this Amendment did not prevent a
state officer from being sued for acts done in excess of his
rightful powers. He also reiterated and amplified the principles
of M'Culloch vs. Maryland. Three years later he gave his opinions
in Brown vs. Maryland and Ogden vs. Saunders.9 In the former
Marshall's opinion was dissented from by a single associate, but
in the latter the Chief Justice found himself for the first and
only time in his entire incumbency in the role of dissenter in a
constitutional case. The decision of the majority, speaking
through Justice Washington, laid down the principle that the
obligation of a private executory contract cannot be said to be
"impaired" in a constitutional sense by the adverse effect of
legislative acts antedating the making of the contract; and thus
the dangerous ambiguity of Sturges vs. Crowinshield was finally
resolved in favor of the States.
In the course of the next few years the Court, speaking usually
through the Chief Justice, decided several cases on principles
favoring local interest, sometimes indeed curtailing the
operation of previously established principles. For example, the
Court held that, in the absence of specific legislation by
Congress to the contrary, a State may erect a dam across
navigable waters of the United States for local purposes10; that
the mere grant of a charter to a corporation does not prevent the
State from taxing such corporation on its franchises,
notwithstanding that "the power to tax involves the power to
destroy"11; that the Federal Courts have no right to set a state
enactment aside on the ground that it had divested vested rights,
unless it had done so through impairing the obligation of
contracts12; that the first eight Amendments to the Constitution
do not limit state power, but only Federal power13 that
decisions adverse to state laws must have the concurrence of a
majority of the Court.14
Despite all these concessions which he made to the rising spirit
of the times, Marshall found his last years to be among the most
trying of his chief justiceship. Jackson, who was now President,
felt himself the chosen organ of "the People's will" and was not
disposed to regard as binding anybody's interpretation of the
Constitution except his own. The West and Southwest, the pocket
boroughs of the new Administration, were now deep in land
speculation and clamorous for financial expedients which the
Constitution banned. John Taylor of Caroline had just finished
his task of defining the principles of constitutional
construction which were requisite to convert the Union into a
league of States and had laid his work at the feet of Calhoun.
Taylor was a candid man and frankly owned the historical
difficulties in the way of carrying out his purpose; but
Calhoun's less scrupulous dialectic swept aside every obstacle
that stood in the way of attributing to the States the completest
sovereignty.
In Craig vs. Missouri (1830)15 the Court was confronted with a
case in which a State had sought to evade the prohibition of the
Constitution against the emission of bills of credit by
establishing loan offices with authority to issue loan
certificates intended to circulate generally in dimensions of
fifty cents to ten dollars and to be receivable for taxes. A
plainer violation of the Constitution would be difficult to
imagine. Yet Marshall's decision setting aside the act was
followed by a renewed effort to procure the repeal of Section XXV
of the Judiciary Act. The discussion of the proposal threw into
interesting contrast two points of view. The opponents of this
section insisted upon regarding constitutional cases as
controversies between the United States and the States in their
corporate capacities; its advocates, on the other hand, treated
the section as an indispensable safeguard of private rights. In
the end, the latter point of view prevailed: the bill to repeal,
which had come up in the House, was rejected by a vote of 138 to
51, and of the latter number all but six came from Southern
States, and more than half of them from natives of Virginia.
Meantime the Supreme Court had become involved in controversy
with Georgia on account of a series of acts which that State had
passed extending its jurisdiction over the Cherokee Indians in
violation of the national treaties with this tribe. In Corn
Tassel's case, the appellant from the Georgia court to the United
States Supreme Court was hanged in defiance of a writ of error
from the Court. In Cherokee Nation vs. Georgia, the Court itself
held that it had no jurisdiction. Finally, in 1832, in Worcester
vs. Georgia,16 the Court was confronted squarely with the question
of the validity of the Georgia acts. The State put in no
appearance, the acts were pronounced void, and the decision
went unenforced. When Jackson was asked what effort the Executive
Department would make to back up the Court's mandate, he is
reported to have said: "John Marshall has made his decision; now
let him enforce it."
Marshall began to see the Constitution and the Union crumbling
before him. "I yield slowly and reluctantly to the conviction,"
he wrote Story, late in 1832, "that our Constitution cannot last
.... Our opinions [in the South] are incompatible with a united
government even among ourselves. The Union has been prolonged
this far by miracles." A personal consideration sharpened his
apprehension. He saw old age at hand and was determined "not to
hazard the disgrace of continuing in office a mere inefficient
pageant," but at the same time he desired some guarantee of the
character of the person who was to succeed him. At first he
thought of remaining until after the election of 1832; but
Jackson's reelection made him relinquish altogether the idea of
resignation.
A few months later, in consequence of the Administration's
vigorous measures against nullification in South Carolina, things
were temporarily wearing a brighter aspect. Yet that the
fundamental elements of the situation had been thereby altered,
Marshall did not believe. "To men who think as you and I do," he
wrote Story, toward the end of 1834, "the present is gloomy
enough; and the future presents no cheering prospect. In the
South...those who support the Executive do not support the
Government. They sustain the personal power of the President, but
labor incessantly to impair the legitimate powers of the
Government. Those who oppose the rash and violent measures of the
Executive...are generally the bitter enemies of Constitutional
Government. Many of them are the avowed advocates of a league;
and those who do not go the whole length, go a great part of
the way. What can we hope for in such circumstances?"
Yet there was one respect in which the significance of Marshall's
achievement must have been as clear to himself as it was to his
contemporaries. He had failed for the time being to establish his
definition of national power, it is true, but he had made the
Supreme Court one of the great political forces of the country.
The very ferocity with which the pretensions of the Court were
assailed in certain quarters was indirect proof of its power, but
there was also direct testimony of a high order. In 1830 Alexis
de Tocqueville, the French statesman, visited the United States
just as the rough frontier democracy was coming into its own.
Only through the Supreme Court, in his opinion, were the forces
of renewal and growth thus liberated to be kept within the bounds
set by existing institutions. "The peace, the prosperity, and the
very existence of the Union," he wrote, "are vested in the hands
of the seven Federal judges. Without them the Constitution would
be a dead letter: the Executive appeals to them for assistance
against the encroachments of the legislative power; the
Legislature demands their protection against the assaults of the
Executive; they defend the Union from the disobedience of the
States, the States from the exaggerated claims of the Union, the
public interest against private interests and the conservative
spirit of stability against the fickleness of the democracy." The
contrast between these observations and the disheartened words in
which Jay declined renomination to the chief justiceship in 1801
gives perhaps a fair measure of Marshall's accomplishment.
Of the implications of the accomplishment of the great Chief
Justice for the political life of the country, let De Tocqueville
speak again: "Scarcely any political question arises in the
United States which is not resolved sooner, or later, into a
judicial question. Hence all parties are obliged to borrow in
their daily controversies the ideas, and even the language
peculiar to judicial proceedings.... The language of the law
thus becomes, in some measure, a vulgar tongue; the spirit of
law, which is produced in the schools and courts of justice,
gradually penetrates beyond their walls into the bosom of
society, where it descends to the lowest classes, so that at last
the whole people contract the habits and the tastes of the
judicial magistrate."
In one respect, however, De Tocqueville erred. American
"legalism," that curious infusion of politics with jurisprudence,
that mutual consultation of public opinion and established
principles, which in the past has so characterized the course of
discussion and legislation in America, is traceable to origins
long antedating Marshall's chief justiceship. On the other hand,
there is no public career in American history which ever built so
largely upon this pervasive trait of the national outlook as did
Marshall's, or which has contributed so much to render it
effective in palpable institutions.
__________
1 See Chapter I.
24 Munford (Va.), 1. See also William E. Dodd's article on
"Chief Justice Marshall and Virginia" in American Historical
Review, vol. XII, p. 776.
31 Wheaton, 304. Marshall had an indirect interest in the case.
See supra, Chapter II.
4 6 Wheaton, 264.
54 Wheaton, 122.
6 8 Wheaton, 1.
7For a good review of the contemporary agitation aroused by
Marshall's decisions, see two articles by Charles Warren in the
American Law Review, vol. XLVII, pp. 1 and 161.
89 Wheaton, 738.
9 12 Wheaton, 213.
10Wilson vs. Blackbird Creek Marsh Company (1829), 2 Peters, 245.
11Providence Bank vs. Billings (1830), 4 Peters, 514.
12Satterlee vs. Matthewson (1829), 2 Peters, 380; and Watson
vs. Mercer (1834), 8 Peters, 110.
13Barron vs. Baltimore (1833), 7 Peters, 243.
14See in this connection the Chief Justice's remarks in
Briscoe vs. Bank of Kentucky, 8 Peters, 118.
15 4 Peters, 410.
166 Peters, 515.
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