The Menace Of State Rights
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. Martin, ² 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.
¹ See pages 14-15.
² 4 Munford (Va.), 1. See also William E. Dodd's article on Chief
Justice Marshall and Virginia in American Historical Review, vol. XII,
p. 776.
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, ¹ 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.
¹ 1 Wheaton, 304. Marshall had an indirect interest in the case. See
supra, pp. 44-45.
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. ¹ 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.
¹ 6 Wheaton, 264.
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 whenever its correct decision depends on the
construction 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 protégé, 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. Crowinshield ¹ 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, ² 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.
¹ 4 Wheaton, 122.
² 8 Wheaton, 1.
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. ¹ 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."
¹ For 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.
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. ¹ 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. ² 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 rôle 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.
¹ 9 Wheaton, 738.
² 12 Wheaton, 213.
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 purposes ¹;
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" ²; 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 contracts ³; that the first eight Amendments
to the Constitution do not limit state power, but only Federal power 4;
that decisions adverse to state laws must have the concurrence of a
majority of the Court. 5
¹ Wilson vs. Blackbird Creek Marsh Company (1829), 2 Peters, 245.
² Providence Bank vs. Billings (1830), 4 Peters, 514.
³ Satterlee vs. Matthewson (1829), 2 Peters, 380; and Watson vs. Mercer
(1834), 8 Peters, 110.
4 Barron vs. Baltimore (1833), 7 Peters, 243.
5 See in this connection the Chief Justice's remarks in Briscoe vs. Bank
of Kentucky, 8 Peters, 118.
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) ¹ 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.
¹ 4 Peters, 410.
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, ¹ 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."
¹ 6 Peters, 515.
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 reëlection 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.