Returning to the technical aspects of the controversy, Marshall points out that the Supreme Court plainly has appellate jurisdiction of the Cohens case: "If a state be a party, the jurisdiction of this court is original; if the case arise under a [National] constitution or a [National] law, the jurisdiction is appellate. But a case to which a state is a party may arise under the constitution or a law of the United States."[984] That would mean a double jurisdiction. Marshall, therefore, shows, at provoking length,[985] that the appellate jurisdiction of the Supreme Court "in all cases arising under the constitution, laws, or treaties of the United States, was not arrested by the circumstance that a state was a party";[986] and in this way he explains that part of his opinion in Marbury vs. Madison, in which he reasoned that Section 13 of the Ellsworth Judiciary Act was unconstitutional.[987]
Marshall examines the Eleventh Amendment and becomes, for a moment, the historian, a rôle in which he delighted. "The states were greatly indebted" at the close of the Revolution; the Constitution was opposed because it was feared that their obligations would be collected in the National courts. This very thing happened. "The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was ... adopted." But "its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation." It was to prevent creditors from suing a State—"no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation."[988]
With savage relish the Chief Justice attacks and demolishes the State Rights theory that the Supreme Court cannot review the judgment of a State court "in any case." That theory, he says, "considers the federal judiciary as completely foreign to that of a state; and as being no more connected with it, in any respect whatever, than the court of a foreign state."[989] But "the United States form, for many, and for most important purposes, a single nation.... In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union.
"It is their government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. The people have declared, that in the exercise of all powers given for these objects it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The Constitution and laws of a state, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void.
"These states are constituent parts of the United States. They are members of one great empire."[990] The National Court alone can decide all questions arising under the Constitution and laws of the Nation. "The uniform decisions of this court on the point now under consideration," he continues, "have been assented to, with a single exception,[991] by the courts of every state in the Union whose judgments have been revised."[992]
As to the lottery ordinance of the City of Washington, Congress has exclusive power to legislate for the District of Columbia and, in exercising that power, acts "as the legislature of the Union." The Constitution declares that it, and all laws made under it, constitute "the supreme law of the land."[993] Laws for the government of Washington are, therefore, parts of this "supreme law" and "bind the nation.... Congress legislates, in the same forms, and in the same character, in virtue of powers of equal obligation, conferred in the same instrument, when exercising its exclusive powers of legislation, as well as when exercising those which are limited."[994]
The Chief Justice gives examples of the exclusive powers of Congress, all of which are binding throughout the Republic. "Congress is not a local legislature, but exercises this particular power [to legislate for the District of Columbia], like all its other powers, in its high character, as the legislature of the Union."[995] The punishment of the Cohens for selling tickets of the National Lottery, created by the City of Washington under authority of an act of Congress, involves the construction of the Constitution and of a National law. The Supreme Court, therefore, has jurisdiction of the case, and the motion to dismiss the writ of error is denied.
Marshall having thus established the jurisdiction of the Supreme Court to hear and decide the case, it was argued "on the merits." Again David B. Ogden appeared for the Cohens and was joined by William Wirt as Attorney-General. For Virginia Webster took the place of Senator Barbour. The argument was upon the true construction of the act of Congress authorizing the City of Washington to establish a lottery; and upon this Marshall delivered a second opinion, to the effect that the lottery ordinance was "only co-extensive with the city" and a purely local affair; that the court at Norfolk had a right to fine the Cohens for violating a law of Virginia; and that its judgment must be affirmed.[996]
So ended, as far as the formal record goes, the famous case of Cohens vs. Virginia. On its merits it amounted to nothing; the practical result of the appeal was nothing; but it afforded John Marshall the opportunity to tell the Nation its duty in a crowning National emergency.
Intense was the excitement and violent the rage in the anti-Nationalist camp when Marshall's opinion was published. Ritchie, in his paper, demanded that the Supreme Court should be abolished.[997] The Virginia Republican organization struck instantly, Spencer Roane wielding its sword. The Enquirer published a series of five articles between May 25 and June 8, 1821, inclusive, signed "Algernon Sidney," Roane's latest nom de plume.