Union and Democracy

by Allen Johnson

THE RISE OF NATIONAL SOVEREIGNTY

Shortly after the Federal Convention of 1787, a friend remarked to Gouverneur Morris, "You have made a good constitution." "That," replied Morris laconically, "depends on how it is construed!" From Washington to Jackson the process of construing the Constitution had gone on, intermittently by the executive and legislative, steadily by the judiciary. "The judiciary of the United States," wrote Jefferson in 1820, "is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederate fabric. They are constantly construing our constitution from a coördination of a general and a special government, to a general and supreme one alone. They will lay all things at their feet, and they are too well versed in the English law to forget the maxim, 'boni judicis est ampliare jurisdictionem.'"

Yet as late as 1800 the federal judiciary had pronounced none of those decisions which were to make it so powerful a factor in the assertion and maintenance of national sovereignty. In declining an appointment as Chief Justice, John Jay wrote to President Adams that he had "left the bench perfectly convinced that under a system so defective, it would not obtain the energy, weight, and dignity, which were essential to its affording due support to the National Government; nor acquire the public confidence and respect which, as the last resort of the justice of the Nation, it should possess."

The uncertainty of the law was in large part responsible for this lack of prestige. "Too great inattention," complained a Boston lawyer, in the Columbian Centinel in 1801, "has hitherto prevailed as to the preservation of the decisions of our courts of law. We have neither authorized nor voluntary reporters. Hence we are compelled to the loose and interested recollections of counsel, or to depend wholly on British decisions." The first systematic attempt to secure records of opinions was made by Connecticut in 1785. Four years later, Ephraim Kirby, a printer in Litchfield, issued "the first regular printed law reports in America." This example was followed in other States; and in 1798 the first volume of United States Supreme Court Reports was published by Dallas.

The great period in the history of the Supreme Court coincides with the thirty-four years during which John Marshall held the office of Chief Justice. President John Adams rendered no more lasting service to the Federalist cause than when he appointed this great Virginian to the bench, for Marshall, if not a Federalist of the strictest sect, was a thoroughgoing nationalist. Down to his appointment only six decisions involving constitutional questions of any moment had been handed down; between 1801 and 1835, sixty-two were rendered, of which Marshall wrote thirty-six. The decisions of the court during "the reign of Marshall" fill thirty volumes of the Reports. Seven hundred and fifty-three cases were taken on appeal to the Supreme Court from the lower federal courts, and in nearly one half of these cases the decisions were reversed.

An American constitutional law did not exist when Marshall took office. Few precedents were available. In some of his important cases Marshall did not cite a single judicial decision. He reached his conclusions by the light of reason. "There, Story," he would say to his associate, "is the law. Now you must find the authorities." In a peculiar sense it is true to say that Marshall both laid the foundations of constitutional law and reared the superstructure, as one of his biographers remarks. But Marshall was ably supported by his colleagues; and he owed much, as he freely admitted, to the arguments of a remarkable body of lawyers of the federal bar. Wirt, Pinkney, and Webster were as truly creators of American constitutional law as the learned justices.

The constitutional importance of the decision of the Supreme Court in Marbury v. Madison has already been pointed out. In the development of the idea of national sovereignty, the significance of the decision lies in the emphatic assertion that the Supreme Court is the tribunal of last resort in cases involving the constitutionality of acts of Congress.

The first open resistance of a State to federal authority, as asserted by the Supreme Court, occurred in 1809, when the legislature of Pennsylvania interposed its authority to prevent the payment of prize money which had been awarded by a federal district court to Gideon Olmstead and others for their capture of the sloop Active during the Revolution. All efforts to secure a peaceful settlement of this controversy having failed, the Attorney-General, in behalf of Olmstead, applied to the Supreme Court for a writ of mandamus, directing Judge Peters of the district court to enforce his judgment. In granting the writ, Chief Justice Marshall pointed out the gravity of the issue. "If the legislatures of the several States," said he, "may at will annul the judgment of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals." Such a conclusion he emphatically repudiated. Reviewing the history of the case with all its details, he reached the uncompromising conclusion that "the State of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause.... A peremptory mandamus must be awarded."

Judge Peters issued the writ, but all efforts of the marshal to serve the writ were thwarted by the state militia. The marshal then summoned a posse comitatus of two thousand men. Bloodshed seemed imminent; but after an ineffectual appeal to the President, the Pennsylvania authorities gave way and paid over the money. Subsequently the officer commanding the militia and others were indicted, tried, convicted, and sentenced to fine and imprisonment, for resisting the writ of a federal court; but they were pardoned by the President because "they had acted under a mistaken sense of duty."

In this conflict of authority the National Government won at every point. Even the resolution which the legislature adopted in the heat of the controversy, calling for an amendment to the Constitution which should establish "an impartial tribunal to determine disputes between the General and State Governments," met with no approval from other States. Virginia, soon to be of a very different mind, responded that "a tribunal is already provided ... to wit: the Supreme Court, more eminently qualified from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid in an enlightened and impartial manner, than any other tribunal which could be erected."