Chapter XIX 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.”
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.
Meantime, the national judiciary had contributed to the expansion of the Constitution in notable ways; sometimes by affirming the constitutionality of powers exercised by the President or Congress, and at other times by narrowing the limits of state authority. In the case of the American Insurance Company v. Canter, twenty-five years after the acquisition of Louisiana, Marshall affirmed the constitutionality of the treaty which had so aroused Jefferson’s misgivings. “The Constitution,” said the Chief Justice, “confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently, that Government possesses the power of acquiring territory, either by conquest or by treaty.”
In two instances, on the other hand, the Supreme Court gave an interpretation of the “obligation of contracts” clause of the Constitution which seriously limited the powers of the States. In the case of Fletcher v. Peck (1810), the court declared unconstitutional an act of the legislature of Georgia which attempted to revoke the notorious Yazoo land grants of 1795. A grant was held to be a contract within the meaning of the Constitution; and the court found no adequate ground for exempting such contracts from the prohibition of the Constitution.
Far-reaching in its implication, also, was the second instance, when the Supreme Court held unconstitutional and void the acts of the New Hampshire legislature which amended the charter granted by the Crown to Dartmouth College in 1769. Arguing as counsel for the college, of which he was an honored graduate, Daniel Webster held that the charter of a private corporation was a contract which might not be impaired by an act of a state legislature. Chief Justice Marshall only restated and amplified Webster’s argument, when he rendered the opinion of the court and declared that New Hampshire might not by law impair the charter of Dartmouth College. To the argument of the counsel for the Commonwealth, contending that the framers of the Constitution never contemplated such a broad use of the word “contract,” Marshall replied that it was not enough to say this particular use of the word was not in the mind of the Convention when the article was adopted. “It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception.”
The immense significance of this decision was not immediately apparent. The peculiar immunity which it gave to private property could not be appreciated until the rise of corporations with concentrated capital. Not even the Chief Justice foresaw that the guaranty of inviolability which he had thrown about a private educational corporation would be demanded with equal right by the great business corporations of the succeeding era.
In the famous case of Gibbons v. Ogden (1824), the Supreme Court gave an interpretation of the commerce clause of the Constitution which also had a profound effect upon subsequent history. In the course of its decision the court declared unconstitutional a law of the State of New York which had granted an exclusive right to operate steamboats in the waters of New York. The regulation of commerce, the court held, had been given exclusively to Congress, and “commerce” as used in the Constitution comprehended not merely traffic and intercourse but also navigation. The power to regulate was regarded as a unit. In regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. “If a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State.” Similarly, the court reasoned that commerce “among the States” cannot stop at the external boundary of each State. “Commerce among the States must of necessity be commerce with the States.” In short, while expressly disclaiming that Congress had the power to regulate the internal commerce of a State, the court asserted the complete control of Congress over inter-state commerce so far as navigation was concerned. The deeper significance of this interpretation of the commerce clause appeared only when railroads began to span the continent and the jurisdictional lines of States were crossed and re-crossed by an ever-increasing volume of trade.
Twenty-five years had wrought a vast change in the position of the national judiciary in the American constitutional system. “It is now seen on every hand,” wrote Attorney-General Wirt, urging the appointment of Chancellor Kent to a vacancy on the Supreme Court bench, “that the functions to be performed by the Supreme Court of the United States are among the most difficult and perilous which are to be performed under the Constitution. They demand the loftiest range of talents and learning and a soul of Roman purity and firmness. The questions which come before them frequently involve the fate of the Constitution, the happiness of the whole Nation, and even its peace as it concerns other nations.” In the light of the decisions reviewed, the nationalizing tendency of the federal judiciary is unmistakable. But a constitutional reaction had set in; and even while John Marshall was setting forth the doctrine of national sovereignty in its most uncompromising form, John C. Calhoun in the quiet of his estate in South Carolina was elaborating a defense of state rights on premises which the great Chief Justice had combated for a quarter of a century.
BIBLIOGRAPHICAL NOTE
An adequate history of the Supreme Court has yet to be written. H. L. Carson, The History of the Supreme Court of the United States, with biographies of all the chief and associate justices (2 vols., 1902-04), and H. Flanders, The Lives and Times of the Chief-Justices of the Supreme Court (2 vols., 1855-58), are serviceable works. The best selection of cases on constitutional law is that by J. B. Thayer, Cases in Constitutional Law (2 vols., 1894-95). Some of the more important decisions may be found abridged in Allen Johnson’s Readings in American Constitutional History (1912). W. W. Willoughby, The Supreme Court: its History and Influence in our Constitutional System (1890), and The American Constitutional System (1904), are interesting volumes by an authority on constitutional law. J. P. Kennedy, Memoirs of the Life of William Wirt (2 vols., 1850); G. J. McRee, Life and Correspondence of James Iredell (2 vols., 1857-58); W. W. Story, Life and Letters of Joseph Story (2 vols., 1851); and G. T. Curtis, Life of Daniel Webster (2 vols., 1870), contribute to an understanding of the relation of the federal bench and bar. Especially valuable is Charles Warren’s History of the American Bar, Colonial and Federal, to 1860 (1911). The progress of American law is reviewed in Two Centuries’ Growth of American Law, 1701-1901, by members of the faculty of the Yale Law School.