Once Marshall had swept aside the irrelevant notion of State Sovereignty, he proceeded with the remainder of his argument without difficulty. Counsel for Virginia had contended that “a case arising under the Constitution or a law must be one in which a party comes into court to demand something conferred on him by the Constitution or a law”; but this construction Marshall held to be “too narrow.” “A case in law or equity consists of the right of the one party as well as of the other, and may truly be said to arise under the Constitution or a law of the United States whenever its correct decision depends on the construction of either.” From this it followed that Section XXV was a measure necessary and proper for extending the judicial power of the United States appellately to such cases whenever they were first brought in a state court. Nor did Article XI of the Amendments nullify the power thus conferred upon the Court in a case which the State itself had instituted, for in such a case the appeal taken to the national tribunal was only another stage in an action “begun and prosecuted,” not against the State, but by the State. The contention of Virginia was based upon the assumption that the Federal and the State Judiciaries constituted independent systems for the enforcement of the Constitution, the national laws, and treaties, and such an assumption Marshall held to be erroneous. For the purposes of the Constitution the United States “form a single nation,” and in effecting these purposes the Government of the Union may “legitimately control all individuals or governments within the American territory.”
“Our opinion in the Bank Case,” Marshall had written Story from Richmond in 1819, a few weeks after M’Culloch vs. Maryland, “has roused the sleeping spirit of Virginia, if indeed it ever sleeps.” Cohens vs. Virginia, in 1821, produced an even more decided reaction. Jefferson, now in retirement, had long since nursed his antipathy for the Federal Judiciary to the point of monomania. It was in his eyes “a subtle corps of sappers and miners constantly working underground to undermine our confederated fabric”; and this latest assault upon the rights of the States seemed to him, though perpetrated in the usual way, the most outrageous of all: “An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his own mind by the turn of his own reasoning.”
Roane, Jefferson’s protégé, was still more violent and wrote a series of unrestrained papers at this time in the Richmond Enquirer, under the pseudonym “Algernon Sidney.” Alluding to these, Marshall wrote Story that “their coarseness and malignity would designate the author of them if he was not avowed.” Marshall himself thought to answer Roane, but quickly learned that the Virginia press was closed to that side of the question. He got his revenge, however, by obtaining the exclusion of Roane’s effusions from Hall’s Law Journal, an influential legal periodical published in Philadelphia. But the personal aspect of the controversy was the least important. “A deep design,” Marshall again wrote his colleague, “to convert our Government into a mere league of States has taken hold of a powerful and violent party in Virginia. The attack upon the judiciary is in fact an attack upon the Union.” Nor was Virginia the only State where this movement was formidable, and an early effort to repeal Section XXV was to be anticipated.
That the antijudicial movement was extending to other States was indeed apparent. The decision in Sturges vs. Crowinshield ¹ left for several years the impression that the States could not pass bankruptcy laws even for future contracts and consequently afforded a widespread grievance. Ohio had defied the ruling in M’Culloch vs. Maryland, and her Treasurer was languishing in jail by the mandate of the Federal Circuit Court. Kentucky had a still sharper grievance in the decision in Green vs. Biddle, ² which invalidated a policy she had been pursuing for nearly a quarter of a century with reference to squatters’ holdings; and what made the decision seem the more outrageous was the mistaken belief that it had represented the views of only a minority of the justices.
¹ 4 Wheaton, 122.
² 8 Wheaton, 1.
The Legislatures of the aggrieved States were soon in full hue and cry at the heels of the Court; and from them the agitation quickly spread to Congress. ¹ On December 12, 1821, Senator Johnson of Kentucky proposed an amendment to the Constitution which was intended to substitute the Senate for the Supreme Court in all constitutional cases. In his elaborate speech in support of his proposition, Johnson criticized at length the various decisions of the Court but especially those grounded on its interpretation of the “obligation of contracts” clause. More than that, however, he denied in toto the rights of the Federal Courts to pass upon the constitutionality either of acts of Congress or of state legislative measures. So long as judges were confined to the field of jurisprudence, the principles of which were established and immutable, judicial independence was all very well, said Johnson, but “the science of politics was still in its infancy”; and in a republican system of government its development should be entrusted to those organs which were responsible to the people. Judges were of no better clay than other folk. “Why, then,” he asked, “should they be considered any more infallible, or their decisions any less subject to investigation and revision?” Furthermore, “courts, like cities, and villages, or like legislative bodies, will sometimes have their leaders; and it may happen that a single individual will be the prime cause of a decision to overturn the deliberate act of a whole State or of the United States; yet we are admonished to receive their opinions as the ancients did the responses of the Delphic oracle, or the Jews, with more propriety, the communications from Heaven delivered by Urim and Thummim to the High Priest of God’s chosen people.”
¹ For a good review of the contemporary agitation aroused by Marshall’s decisions, see two articles by Charles Warren in the American Law Review, vol. XLVII, pp. 1 and 161.
For several years after this, hardly a session of Congress convened in which there was not introduced some measure for the purpose either of curbing the Supreme Court or of curtailing Marshall’s influence on its decisions. One measure, for example, proposed the repeal of Section XXV; another, the enlargement of the Court from seven to ten judges; another, the requirement that any decision setting aside a state law must have the concurrence of five out of seven judges; another, the allowance of appeals to the Court on decisions adverse to the constitutionality of state laws as well as on decisions sustaining them. Finally, in January, 1826, a bill enlarging the Court to ten judges passed the House by a vote of 132 to 27. In the Senate, Rowan of Kentucky moved an amendment requiring in all cases the concurrence of seven of the proposed ten judges. In a speech which was typical of current criticism of the Court he bitterly assailed the judges for the protection they had given the Bank—that “political juggernaut,” that “creature of the perverted corporate powers of the Federal Government”—and he described the Court itself as “placed above the control of the will of the people, in a state of disconnection with them, inaccessible to the charities and sympathies of human life.” The amendment failed, however, and in the end the bill itself was rejected.
Yet a proposition to swamp the Court which received the approval of four-fifths of the House of Representatives cannot be lightly dismissed as an aberration. Was it due to a fortuitous coalescence of local grievances, or was there a general underlying cause? That Marshall’s principles of constitutional law did not entirely accord with the political and economic life of the nation at this period must be admitted. The Chief Justice was at once behind his times and ahead of them. On the one hand, he was behind his times because he failed to appreciate adequately the fact that freedom was necessary to frontier communities in meeting their peculiar problems—a freedom which the doctrine of State Rights promised them—and so he had roused Kentucky’s wrath by the pedantic and, as the Court itself was presently forced to admit, unworkable decision in Green vs. Biddle. Then on the other hand, the nationalism of this period was of that negative kind which was better content to worship the Constitution than to make a really serviceable application of the national powers. After the War of 1812 the great and growing task which confronted the rapidly expanding nation was that of providing adequate transportation, and had the old federalism from which Marshall derived his doctrines been at the helm, this task would undoubtedly have been taken over by the National Government. By Madison’s veto of the Cumberland Road Bill, however, in 1816, this enterprise was handed over to the States; and they eagerly seized upon it after the opening of the Erie Canal in 1825 and the perception of the immense success of the venture. Later, to be sure, the panic of 1837 transferred the work of railroad and canal building to the hands of private capital but, after all, without altering greatly the constitutional problem. For with corporations to be chartered, endowed with the power of eminent domain, and adequately regulated, local policy obviously called for widest latitude.
Reformers are likely to count it a grievance that the courts do not trip over themselves in an endeavor to keep abreast with what is called “progress.” But the true function of courts is not to reform, but to maintain a definite status quo. The Constitution defined a status quo the fundamental principles of which Marshall considered sacred. At the same time, even his obstinate loyalty to “the intentions of the framers” was not impervious to facts nor unwilling to come to terms with them, and a growing number of his associates were ready to go considerably farther.