The connecting link between the Supreme Court and the state courts has already been pointed out to be Section XXV of the Act of 1789 organizing the Federal Judiciary. ¹ This section provides, in effect, that when a suit is brought in a state court under a state law, and the party against whom it is brought claims some right under a national law or treaty or under the Constitution itself, the highest state court into which the case can come must either sustain such a claim or consent to have its decision reviewed, and possibly reversed, by the Supreme Court. The defenders of State Rights at first applauded this arrangement because it left to the local courts the privilege of sharing a jurisdiction which could have been claimed exclusively by the Federal Courts. But when State Rights began to grow into State Sovereignty, a different attitude developed, and in 1814 the Virginia Court of Appeals, in the case of Hunter vs. Martin, ² pronounced Section XXV void, though, in order not to encourage the disloyal tendencies then rampant in New England, the decision was not published until after the Treaty of Ghent, in February, 1815.
¹ See pages [14]-[15].
² 4 Munford (Va.), 1. See also William E. Dodd’s article on Chief Justice Marshall and Virginia in American Historical Review, vol. XII, p. 776.
The head and front of the Virginia court at this time was Spencer Roane, described as “the most powerful politician in the State,” an ardent Jeffersonian, and an enemy of Marshall on his own account, for had Ellsworth not resigned so inopportunely, late in 1800, and had Jefferson had the appointment of his successor, Roane would have been the man. His opinion in Hunter vs. Martin disclosed personal animus in every line and was written with a vehemence which was more likely to discomfit a grammarian than its designed victims; but it was withal a highly ingenious plea. At one point Roane enjoyed an advantage which would not be his today when so much more gets into print, for the testimony of Madison’s Journal, which was not published till 1840, is flatly against him on the main issue. In 1814, however, the most nearly contemporaneous evidence as to the intention of the framers of the Constitution was that of the Federalist, which Roane stigmatizes as “a mere newspaper publication written in the heat and fury of the battle,” largely by “a supposed favorer of a consolidated government.” This description not only overlooks the obvious effort of the authors of the Federalist to allay the apprehensions of state jealousy but it also conveniently ignores Madison’s part in its composition. Indeed, the enfant terrible of State Rights, the Madison of 1787-88, Roane would fain conceal behind the Madison of ten years later; and the Virginia Resolutions of 1798 and the Report of 1799 he regards the earliest “just exposition of the principles of the Constitution.”
To the question whether the Constitution gave “any power to the Supreme Court of the United States to reverse the judgment of the supreme court of a State,” Roane returned an emphatic negative. His argument may be summarized thus: The language of Article III of the Constitution does not regard the state courts as composing a part of the judicial organization of the General Government; and the States, being sovereign, cannot be stripped of their power merely by implication. Conversely, the General Government is a government over individuals and is therefore expected to exercise its powers solely through its own organs. To be sure, the judicial power of the United States extends to “all cases arising” under the Constitution and the laws of the United States. But in order to come within this description, a case must not merely involve the construction of the Constitution or laws of the United States; it must have been instituted in the United States courts, and not in those of another Government. Further, the Constitution and the acts of Congress “in pursuance thereof” are “the supreme law of the land,” and “the judges in every State” are “bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” But they are bound as state judges and only as such; and what the Constitution is, or what acts of Congress are “in pursuance” of it, is for them to declare without any correction or interference by the courts of another jurisdiction. Indeed, it is through the power of its courts to say finally what acts of Congress are constitutional and what are not, that the State is able to exercise its right of arresting within its boundaries unconstitutional measures of the General Government. For the legislative nullification of such measures proposed by the Virginia and Kentucky resolutions is thus substituted judicial nullification by the local judiciaries.
In Martin vs. Hunter’s Lessee, ¹ which was decided in February, 1816, Story, speaking for the Court, undertook to answer Roane. Roane’s major premise he met with flat denial: “It is a mistake,” he asserts, “that the Constitution was not designed to operate upon States in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the States in some of the highest branches of their prerogatives.” The greater part of the opinion, however, consisted of a minute examination of the language of Article III of the Constitution. In brief, he pointed out that while Congress “may … establish” inferior courts and, therefore, may not, it was made imperative that the judicial power of the United States “shall extend to all cases arising … under” the Constitution and acts of Congress. If, therefore, Congress should exercise its option and not establish inferior courts, in what manner, he asked, could the purpose of the Constitution be realized except by providing appeals from the state courts to the United States Supreme Court? But more than that, the practical consequences of the position taken by the Virginia Court of Appeals effectually refuted it. That there should be as many versions of the Constitution, laws, and treaties as there are States in the Union was certainly never intended by the framers, nor yet that plaintiffs alone should say when resort should be had to the national tribunals, which were designed for the benefit of all.
¹ 1 Wheaton, 304. Marshall had an indirect interest in the case. See supra, pp. 44-45.
If Story’s argument is defective at any point, it is in its failure to lay down a clear definition of “cases arising under this Constitution,” and this defect in constitutional interpretation is supplied five years later in Marshall’s opinion in Cohens vs. Virginia. ¹ The facts of this famous case were as follows: Congress had established a lottery for the District of Columbia, for which the Cohens had sold tickets in Virginia. They had thus run foul of a state law prohibiting such transactions and had been convicted of the offense in the Court of Quarterly Sessions of Norfolk County and fined one hundred dollars. From this judgment they were now appealing under Section XXV.
Counsel for the State of Virginia again advanced the principles which had been developed by Roane in Hunter vs. Martin but urged in addition that this particular appeal rendered Virginia a defendant contrary to Article XI of the Amendments. Marshall’s summary of their argument at the outset of his opinion is characteristic: “They maintain,” he said, “that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts which may be made by a part against the legitimate powers of the whole, and that the government is reduced to the alternative of submitting to such attempts or of resisting them by force. They maintain that the Constitution of the United States has provided no tribunal for the final construction of itself or of the laws or treaties of the nation, but that this power must be exercised in the last resort by the courts of every State in the Union. That the Constitution, laws, and treaties may receive as many constructions as there are States; and that this is not a mischief, or, if a mischief, is irremediable.”
The cause of such absurdities, Marshall continued, was a conception of State Sovereignty contradicted by the very words of the Constitution, which assert its supremacy, and that of all acts of Congress in pursuance of it, over all conflicting state laws whatsoever. “This,” he proceeded to say, “is the authoritative language of the American People, and if gentlemen please, of the American States. It marks, with lines too strong to be mistaken, the characteristic distinction between the Government of the Union and those of the States. The General Government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the Constitution, and if there be any who deny its necessity, none can deny its authority.” Nor was this to say that the Constitution is unalterable. “The people make the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will. But this supreme and irresistible power to make or unmake resides only in the whole body of the people, not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.”