For one hundred and twenty-one scintillant and learned pages Taylor attacks this latest creation of National "tyranny." The whole Nationalist system is "tyranny," which it is his privilege to "unmask," and the duty of all true Americans to destroy.[1021] Marshall's Constitutional doctrine "amounts to the insertion of the following article in the constitution: 'Congress shall have power, with the assent of the Supreme Court, to exercise or usurp, and to prohibit the States from exercising, any or all of the powers reserved to the States, whenever they [Congress] shall deem it convenient, or for the general welfare.'"[1022] Such doctrines invite "civil war."[1023]
By Marshall's philosophy "the people are made the prey of exclusive privileges." In short, under him the Supreme Court has become the agent of special interests.[1024] "Cannot the Union subsist unless Congress and the Supreme Court shall make banks and lotteries?"[1025]
Jefferson eagerly read Roane's essays and Taylor's book and wrote concerning them: "The judiciary branch is the instrument which, working like gravity, without intermission, is to press us at last into one consolidated mass. Against this I know no one who, equally with Judge Roane himself, possesses the power and the courage to make resistance; and to him I look, and have long looked, as our strongest bulwark."
At this point Jefferson declares for armed resistance to the Nation in even stronger terms than those used by Roane or Taylor: "If Congress fails to shield the States from dangers so palpable and so imminent, the States must shield themselves, and meet the invader foot to foot.... This is already half done by Colonel Taylor's book" which "is the most effectual retraction of our government to its original principles which has ever yet been sent by heaven to our aid. Every State in the Union should give a copy to every member they elect, as a standing instruction, and ours should set the example."[1026]
Until his death the aged politician raged continuously, except in one instance,[1027] at Marshall and the Supreme Court because of such opinions and decisions as those in the Bank and Lottery cases. He writes Justice Johnson that he "considered ... maturely" Roane's attacks on the doctrines of Cohens vs. Virginia and they appeared to him "to pulverize every word which had been delivered by Judge Marshall, of the extra-judicial part of his opinion." If Roane "can be answered, I surrender human reason as a vain and useless faculty, given to bewilder, and not to guide us.... This practice of Judge Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and censurable."[1028]
Again Jefferson writes that, above all other officials, those who most need restraint from usurping legislative powers are "the judges of what is commonly called our General Government, but what I call our Foreign department.... A few such doctrinal decisions, as barefaced as that of the Cohens," may so arouse certain powerful States as to check the march of Nationalism. The Supreme Court "has proved that the power of declaring what the law is, ad libitum, by sapping and mining, slily and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt."[1029]
So it came to pass that John Marshall and the Supreme Court became a center about which swirled the forces of a fast-gathering storm that raged with increasing fury until its thunders were the roar of cannon, its lightning the flashes of battle. Broadly speaking, slavery and free trade, State banking and debtors' relief laws were arraigned on the side of Localism; while slavery restriction, national banking, a protective tariff, and security of contract were marshaled beneath the banner of Nationalism. It was an assemblage of forces as incongruous as human nature itself.
The Republican protagonists of Localism did not content themselves with the writing of enraged letters or the publication of flaming articles and books. They were too angry thus to limit their attacks, and they were politicians of too much experience not to crystallize an aroused public sentiment. On December 12, 1821, Senator Richard M. Johnson of Kentucky, who later was honored by his party with the Vice-Presidency, offered an amendment to the Constitution that the Senate be given appellate jurisdiction in all cases where the Constitution or laws of a State were questioned and the State desired to defend them; and in all cases "where the judicial power of the United States shall be so construed as to extend to any case ... arising under" the National Constitution, laws, or treaties.[1030]
Coöperating with Johnson in the National Senate, Roane in Virginia, when the Legislature of that State met, prepared amendments to the National Constitution which, had they been adopted by the States, would have destroyed the Supreme Court. He declares that he takes this step "with a view to aid" the Congressional antagonists of Nationalism and the Supreme Court, "or rather to lead, on this important subject." The amendments "will be copied by another hand & circulated among the members. I would not wish to injure the great Cause, by being known as the author. My name would damn them, as I believe, nay hope, with the Tories." Roane asks his correspondent to "jog your Chesterfield Delegates ... and other good republicans," and complains that "Jefferson & Madison hang back too much, in this great Crisis."[1031]
On Monday, January 14, 1822, Senator Johnson took the floor in support of his proposition to reduce the power of the Supreme Court. "The conflicts between the Federal judiciary and the sovereignty of the States," he said, "are become so frequent and alarming, that the public safety" demands a remedy. "The Federal judiciary has assumed a guardianship over the States, even to the controlling of their peculiar municipal regulations."[1032] The "basis of encroachment" is Marshall's "doctrine of Federal supremacy ... established by a judicial tribunal which knows no change. Its decisions are predicated upon the principle of perfection, and assume the character of immutability. Like the laws of the Medes and Persians, they live forever, and operate through all time." What shall be done? An appeal to the Senate "will be not only harmless, but beneficial." It will quiet "needless alarms ... restore ... confidence ... preserve ... harmony." There is pressing need to tranquillize the public mind concerning the National Judiciary,[1033] a department of the government which is a denial of our whole democratic theory. "Some tribunal should be established, responsible to the people, to correct their [the Judges'] aberrations."