Union and Democracy

by Allen Johnson

In two notable cases, the Supreme Court affirmed the constitutionality of the Judiciary Act of 1789 and asserted its authority to review and reverse decisions of the state courts when those decisions were adverse to alleged federal rights. The opinion in the first case, that of Martin v. Hunter's Lessee, in 1816, was written by Joseph Story, of Massachusetts, who had been appointed to a vacancy on the bench by President Madison. Story was reputed to be a Republican, but he disappointed all expectations by becoming a stanch supporter of nationalist doctrines and only second to Marshall in his influence upon the development of American constitutional law.

The case of Martin v. Hunter's Lessee grew out of the old Fairfax claims which Marshall had represented as counsel before his appointment to the bench. In 1815, the Supreme Court had reversed the decision of the Court of Appeals of Virginia, and ordered the state court to execute the judgment rendered in the lower state court. The judges of the Court of Appeals, headed by Judge Spencer Roane, a bitter opponent of Marshall, formally announced that they would not obey the mandamus, holding that the twenty-fifth section of the Judiciary Act of 1789—that extending the appellate jurisdiction of the Supreme Court over state tribunals—was unconstitutional. The state-rights elements in Virginia quickly rallied to the support of the judges, and the Supreme Court found itself face to face with an incensed public opinion in the Old Dominion. In no wise daunted by this opposition, the Supreme Court reviewed its position in 1816 and again ordered the execution of its judgment.

Five years later, Chief Justice Marshall rendered a similar decision in the case of Cohens v. Virginia. The counsel for the Commonwealth had argued that the appellate jurisdiction conferred by the Constitution on the Supreme Court was merely authority to revise the decisions of the inferior courts of the United States. "Congress," it was contended, "is not authorized to make the supreme court or any other court of a State an inferior court.... The inferior courts spoken of in the Constitution are manifestly to be held by federal judges." "It is the case, not the court, that gives jurisdiction," replied Marshall. "The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the States, and if they are found to be contrary to the Constitution may declare them to be of no legal validity. Surely the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power."

It was in the course of this decision that Marshall asserted in unmistakable language the sovereignty of the National Government. "The people made the Constitution and the people can unmake it.... But this supreme and irresistible power to make or to unmake resides only in the whole body of the people; not in any subdivision of them. The attempts of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated the power of repelling it.... The framers of the Constitution were indeed unable to make any provisions which should protect that instrument against a general combination of the States, or of the people for its destruction; and conscious of this inability, they have not made the attempt. But they were able to provide against the operation of measures adopted in any one State, whose tendency might be to arrest the execution of the laws; and this it was the part of wisdom to attempt. We think they have attempted it."

Between these notable Virginia cases was decided, in 1819, the case of M'Culloch v. Maryland, in which the Chief Justice sustained the constitutionality of the act establishing the National Bank, and declared a state law imposing a tax on a branch of the Bank unconstitutional and void. In the course of his opinion, which followed much the same line of reasoning that Alexander Hamilton had employed, Marshall stated in classic phraseology the doctrine of liberal construction. Holding that the Constitution was not a code of law, but a document marking out in large characters the powers of government, he sought, among the enumerated powers, not the lesser, but the great substantive, powers necessary to the purposes of the Union. These substantive powers, however, carry with them many incidental (Hamilton said resulting) powers, among which a choice may freely be made to achieve the desired and legitimate end. "Let the end be legitimate," said Marshall, "let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." In an earlier decision (United States v. Fisher, 1804), indeed, Marshall had refused to concede the force of the argument that the Federal Government was clothed only with the powers indispensably necessary to exercise powers expressly granted to it. "Congress must possess the choice of means which are in fact conducive to the exercise of a power granted by the Constitution."

The cumulative effect of these decisions was to provoke a violent reaction in Virginia. Under the pen-name "Algernon Sidney," Judge Roane renewed his attacks upon the Chief Justice in violent and at times offensive language. "The judgment before us," he declared, referring to the case of Cohens v. Virginia, "will not be less disastrous in its consequences, than any of these memorable judgments [of the time of Charles I]. It completely negatives the idea, that the American States have a real existence, or are to be considered, in any sense, as sovereign and independent States." It seemed to Jefferson that the powerful arguments of Roane completely "pulverized" every word which had been uttered by John Marshall. John Taylor of Caroline, however, was the philosophical exponent of this reactionary movement. In his Construction Construed (1820), Tyranny Unmasked (1822), and New Views of the Constitution (1823), he pointed out the manifest tendency of the decisions of the Supreme Court and suggested the "state veto" as the remedy against usurpation of power by the Supreme Court or by Congress. The legislature of Virginia indorsed an amendment to the Constitution drafted by Judge Roane which would have limited the jurisdiction of the federal courts, where the rights of the States were concerned, and which would have forbidden appeals from the courts of a State to any court of the United States. Beyond such remonstrances and protests, however, public opinion in Virginia was not prepared to go at this time.

The judges of the Supreme Court could not remain indifferent to these assaults. "If, indeed, the Judiciary is to be destroyed," wrote Story, "I should be glad to have the decisive blow now struck, while I am young, and can return to my profession and earn an honest livelihood." But he added, "For the Judges of the Supreme Court there is but one course to pursue. That is, to do their duty firmly and honestly, according to their best judgments."

It was in this spirit that the court rendered judgment in the case of Green v. Biddle (1823), which gave deep offense to the people of Kentucky by setting aside as unconstitutional the so-called "Occupying Claimant Laws." The remonstrance of the legislature was all the more bitter because the decision had been rendered by a bench of only four judges, one of whom dissented from the majority opinion. The resolutions of the legislature demanded a reorganization of the court in such wise that the concurrence of at least two thirds of the judges should be necessary in an opinion affecting the validity of state laws. And when Congress made no response, the lower House called upon the governor to express his opinion "whether it may be advisable to call forth the physical power of the State to resist the execution of the decisions of the court, or in what manner the mandates of said court should be met by disobedience." But Kentucky like Virginia kept well within the legal limits of petition and remonstrance.

In Ohio, also, there was an ominous spirit of resistance to the force of precedent. Notwithstanding the decision of the court in the case of M'Culloch v. Maryland, the general assembly of that State not only enacted a law to tax the local branch of the National Bank, but actually seized the amount of the tax. Suit was thereupon brought against the state auditor; and in spite of the vigorous remonstrance of the legislature, the Supreme Court again sustained the constitutionality of the Bank and declared the state tax unconstitutional. The State was ultimately obliged to make restitution of the funds of the Bank.