The Ohio declaration is drawn with notable ability. A State cannot be sued—the true meaning of the Constitution forbids, and the Eleventh Amendment specifically prohibits, such procedure.
Yet the action against Osborn, State Auditor, and Samuel Sullivan, State Treasurer, is, "to every substantial purpose, a process against the State." The decision of the National Supreme Court that the States have no power to tax branches of the Bank of the United States does not bind Ohio or render her tax law "a dead letter."[912]
The Ohio Legislature challenges the bona fides of M'Culloch vs. Maryland: "If, by the management of a party, and through the inadvertence or connivance of a State, a case be made, presenting to the Supreme Court of the United States for decision important ... questions of State power and State authority, upon no just principle ought the States to be concluded by any decision had upon such a case.... Such is the true character of the case passed upon the world by the title of McCulloch vs. Maryland," which, "when looked into, is found to be ... throughout, an agreed case, made expressly for the purpose of obtaining the opinion of the Supreme Court of the United States.... This agreed case was manufactured in the summer of the year 1818" and rushed through two Maryland courts, "so as to be got upon the docket of the Supreme Court of the United States for adjudication at their February term, 1819.... It is truly an alarming circumstance if it be in the power of an aspiring corporation and an unknown and obscure individual thus to elicit opinions compromitting the vital interests of the States that compose the American Union."
Luckily for Ohio and all the States, this report goes on to say, some of Marshall's opinions have been "totally impotent and unavailing," as, for instance, in the case of Marbury vs. Madison. Marbury did not get his commission; "the person appointed in his place continued to act; his acts were admitted to be valid; and President Jefferson retained his standing in the estimation of the American people." It was the same in the case of Fletcher vs. Peck. Marshall held that "the Yazoo purchasers ... were entitled to their lands. But the decision availed them nothing, unless as a make-weight in effecting a compromise." Since, in neither of these cases, had the National Government paid the slightest attention to the decision of the Supreme Court, how could Ohio "be condemned because she did not abandon her solemn legislative acts as a dead letter upon the promulgation of an opinion of that tribunal"?[913]
The Ohio Legislature then proceeds to analyze Marshall's opinion in M'Culloch vs. Maryland. All the arguments made against the principle of implied powers since Hamilton first announced that principle,[914] and all the reasons advanced against the doctrine that the National Government is supreme, in the sense employed by Marshall, are restated with clearness and power. However, since the object of the tax was to drive the branches of the Bank out of Ohio, the Legislature suggests a compromise. If the National institution will cease business within the State and "give assurance" that the branches be withdrawn, the State will refund the tax money it has seized.[915]
Instantly turning from conciliation to defiance, "because the reputation of the State has been assailed," the Legislature challenges the National Government to make good Marshall's assertion that the power which created the Bank "must have the power to preserve it." Ohio should pass laws "forbidding the keepers of our jails from receiving into their custody any person committed at the suit of the Bank of the United States," and prohibiting Ohio judges, recorders, notaries public, from recognizing that institution in any way.[916] Congress will then have to provide a criminal code, a system of conveyances, and other extensive measures. Ohio and the country will then learn whether the power that created the Bank can preserve it.
The Ohio memorial concludes with a denial that the "political rights" and "sovereign powers" of a State can be settled by the Supreme Court of the Nation "in cases contrived between individuals, and where they [the States] are, no one of them, parties direct." The resolutions further declare that the opinion of the other States should be secured.[917] This alarming manifesto was presented to the National Senate on February 1, 1821, just six weeks before Marshall delivered the opinion of the Supreme Court in Cohens vs. Virginia.[918]
Pennsylvania had already taken stronger measures; had anticipated even Virginia. Within seven weeks from the delivery of Marshall's opinion in M'Culloch vs. Maryland, the Legislature of Pennsylvania proposed an amendment to the National Constitution prohibiting Congress from authorizing "any bank or other monied institution" outside of the District of Columbia.[919] The action of Ohio was an endorsement of that of Virginia and Pennsylvania. Indiana had already swung into line.[920] So had Illinois and Tennessee.[921] For some reason, Kentucky, soon to become one of the most belligerent and persevering of all the States in her resistance to the "encroachments" of Nationalism as expounded by the Supreme Court, withheld her hand for the moment.
Most unaccountably, South Carolina actually upheld Marshall's opinion,[922] which that State, within a decade, was to repudiate, denounce, and defy in terms of armed resistance.[923] New York and Massachusetts,[924] consulting their immediate interests, were very stern against the Localism of Ohio, Virginia, and Pennsylvania.[925] Georgia expressed her sympathy with the Localist movement, but, for the time being, was complaisant[926]—a fact the more astonishing that she had already proved, and was soon to prove again, that Nationalism is a fantasy unless it is backed by force.[927]
Notwithstanding the eccentric attitude of various members of the Union, it was only too plain that a powerful group of States were acting in concert and that others ardently sympathized with them.