What will be the result if Virginia's attitude is confirmed? Nothing less than the prostration of the National Government "at the feet of every state in the Union.... Each member will possess a veto on the will of the whole." Consider the country's experience. Assumption[974] had been deemed unconstitutional by some States; opposition to excise taxes had produced the Whiskey Rebellion;[975] other National statutes "have been questioned partially, while they were supported by the great majority of the American people."[976] There can be no assurance that such divergent and antagonistic actions may not again be taken. State laws in conflict with National laws probably will be enforced by State judges, since they are subject to the same prejudices as are the State Legislatures—indeed, "in many states the judges are dependent for office and for salary on the will of the legislature."[977]
The Constitution attaches first importance to the "independence" of the Judiciary; can it have been intended to leave to State "tribunals, where this independence may not exist," cases in which "a state shall prosecute an individual who claims the protection of an act of Congress?" Marshall gives examples of possible collisions between National and State authority, in ordinary times, as well as in exceptional periods.[978] Even to-day it is obvious that the Chief Justice was denouncing the threatened resistance by State officials to the tariff laws, a fact of commanding importance at the time when Marshall's opinion in Cohens vs. Virginia was delivered.
At this point he rises to the heights of august eloquence: "A constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it ... with the means of self-preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day."
Marshall is here replying to the Southern threats of secession, just as he rebuked the same spirit when displayed by his New England friends ten years earlier.[979] Then turning to the conflict of courts, he remarks, as though the judicial collision is all that he has in mind: "A government should repose on its own courts, rather than on others."[980]
He recalls the state of the country under the Confederation when requisitions on the States were "habitually disregarded," although they were "as constitutionally obligatory as the laws enacted by the present Congress." In view of this fact is it improbable that the framers of the Constitution meant to give the Nation's courts the power of preserving that Constitution, and laws made in pursuance of it, "from all violation from every quarter, so far as judicial decisions can preserve them"?[981]
Virginia contends that if States wish to destroy the National Government they can do so much more simply and easily than by judicial decision—"they have only not to elect senators, and it expires without a struggle"; and that therefore the destructive effect on the Nation of decisions of State courts cannot be taken into account when construing the Constitution.
To this Marshall makes answer: "Whenever hostility to the existing system shall become universal, it will be also irresistible. The people made 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 to unmake, resides only in the whole body of the people; not in any sub-division 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. The acknowledged inability of the government, then, to sustain itself against the public will, and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutional inability to preserve itself against a section of the nation acting in opposition to the general will."[982]
This is a direct reply to the Southern arguments in the Missouri debate which secessionists were now using wherever those who opposed National laws and authority raised their voices. John Marshall is blazing the way for Abraham Lincoln. He speaks of a "section" instead of a State. The Nation, he says, may constitutionally preserve itself "against a section." And this right of the Nation rests on "principles" inherent in the Constitution. But in Cohens vs. Virginia no "section" was arrayed against the Nation—on the record there was nothing but a conflict of jurisdiction of courts, and this only by a strained construction of a municipal lottery ordinance into a National law.
The Chief Justice is exerting to the utmost his tremendous powers, not to protect two furtive peddlers of lottery tickets, but to check a powerful movement that, if not arrested, must destroy the Republic. Should that movement go forward thereafter, it must do so over every Constitutional obstacle which the Supreme Court of the Nation could throw in its way. In Cohens vs. Virginia, John Marshall stamped upon the brow of Localism the brand of illegality. If this is not the true interpretation of his opinion in that case, all of the exalted language he used is mere verbiage.
Marshall dwells on "the subordination of the parts to the whole." The one great motive for establishing the National Judiciary "was the preservation of the constitution and laws of the United States, so far as they can be preserved by judicial authority."[983]