Why should not the National Judiciary be made answerable to the people? No fair-minded man can deny that the judges exercise legislative power. "If a judge can repeal a law of Congress, by declaring it unconstitutional, is not this the exercise of political power? If he can declare the laws of a State unconstitutional and void, and, in one moment, subvert the deliberate policy of that State for twenty-four years, as in Kentucky, affecting its whole landed property, ... is not this the exercise of political power? All this they have done, and no earthly power can investigate or revoke their decisions."[1034] The Constitution gives the National Judiciary no such power—that instrument "is as silent as death upon the subject."[1035]
How absurd is the entire theory of judicial independence! Why should not Congress as properly declare the decisions of the National courts unconstitutional as that the courts should do the same thing to acts of Congress or laws of States? Think of it as a matter of plain common sense—"forty-eight Senators, one hundred and eighty-eight Representatives, and the President of the United States, all sworn to maintain the Constitution, have concurred in the sentiment that the measure is strictly conformable to it. Seven judges, irresponsible to any earthly tribunal for their decisions, revise the measure, declare it unconstitutional, and effectually destroy its operation. Whose opinion shall prevail? that of the legislators and President, or that of the Court?"[1036]
The Supreme Court, too, has gently exercised the principle of judicial supervision over acts of Congress; has adjudged that Congress has a free hand in choosing means to carry out powers expressly granted to that body. But consider the conduct of the Supreme Court toward the States: "An irresponsible judiciary" has ruthlessly struck down State law after State law; has repeatedly destroyed the decisions of State courts. Look at Marshall's opinions in M'Culloch vs. Maryland, in the Dartmouth College case, in United States vs. Peters, in Sturges vs. Crowninshield, in Cohens vs. Virginia—smallest, but perhaps worst of all, in Wilson vs. New Jersey. The same principle runs through all these pronouncements;—the States are nothing, the Nation everything.[1037]
Webster, in the House, heard of Johnson's speech and promptly wrote Story: "Mr. Johnson of Kentucky ... has dealt, they say, pretty freely with the supreme court. Dartmouth College, Sturges and Crowninshield, et cetera, have all been demolished. To-morrow he is to pull to pieces the case of the Kentucky betterment law. Then Governor [Senator] Barber [Barbour] is to annihilate Cohens v. Virginia. So things go; but I see less reality in all this smoke than I thought I should, before I came here."[1038]
It would have been wiser for Webster to have listened carefully to Johnson's powerful address than to have sneered at it on hearsay, for it was as able as it was brave; and, erroneous though it was, it stated most of the arguments advanced before or since against the supervisory power of the National Judiciary over the enactments of State Legislatures and the decisions of State courts.
When the Kentucky Senator resumed his speech the following day, he drove home his strongest weapon—an instance of judicial interference with State laws which, indeed, at first glance appeared to have been arbitrary, autocratic, and unjust. The agreement between Virginia and Kentucky by which the latter was separated from the parent Commonwealth provided that "all private rights and interests of lands" in Kentucky "derived from the laws of Virginia, shall remain valid ... and shall be determined by the laws now existing" in Virginia.[1039]
In 1797 the Kentucky Legislature enacted that persons occupying lands in that State who could show a clear and connected title could not, without notice of any adverse title, upon eviction by the possessor of a superior title, be held liable for rents and profits during such occupancy.[1040] Moreover, all permanent improvements made on the land must, in case of eviction, be deducted from the value of the land and judgment therefor rendered in favor of the innocent occupant and against the successful claimant. On January 31, 1812, this "occupying claimant" law, as it was called, was further strengthened by a statute providing that any person "seating and improving" lands in Kentucky, believing them "to be his own" because of a claim founded on public record, should be paid for such seating and improvements by any person who thereafter was adjudged to be the lawful owner of the lands.
Against one such occupant, Richard Biddle, the heirs of a certain John Green brought suit in the United States Court for the District of Kentucky, and the case was certified to the Supreme Court on a division of opinion of the judges. The case was argued and decided at the same term at which Marshall delivered his opinion in Cohens vs. Virginia. Story delivered the unanimous opinion of the court: that the Kentucky "occupying claimant" laws violated the separation "compact" between Virginia and Kentucky, because, "by the general principles of law, and from the necessity of the case, titles to real estate can be determined only by the laws of the state under which they were acquired."[1041] Unfortunately Story did not specifically base the court's decision on the contract clause of the Constitution, but left this vital point to inference.
Henry Clay, "as amicus curiæ," moved for a rehearing because the rights of numerous occupants of Kentucky lands "would be irrevocably determined by this decision," and because Biddle had permitted the case "to be brought to a hearing without appearing by his counsel, and without any argument on that side of the question."[1042] In effect, Clay thus intimated that the case was feigned. The motion was granted and Green vs. Biddle was awaiting reargument when Senator Johnson made his attack on the National Judiciary.
Johnson minutely examined the historical reasons for including the contract clause in the National Constitution, "in order to understand perfectly well the mystical influence" of that provision.[1043] It never was intended to affect such legislation as the Kentucky land system. The intent and meaning of the contract clause is, that "you shall not declare to-day that contract void, ... which was made yesterday under the sanction of law."[1044] Does this simple rule of morality justify the National courts in annulling measures of public policy "which the people have solemnly declared to be expedient"?[1045] The decision of the Supreme Court in Green vs. Biddle, said Johnson, "prostrates the deliberate" course which Kentucky has pursued for almost a quarter of a century, "and affects its whole landed interest. The effect is to legislate for the people; to regulate the interior policy of that community, and to establish their municipal code as to real estate."[1046]