Part 16 (1/2)
The first open resistance of a State to federal authority, as a.s.serted 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 Const.i.tution 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 const.i.tutional 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 Const.i.tution 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 const.i.tutionality of the Judiciary Act of 1789 and a.s.serted 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 Ma.s.sachusetts, 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 const.i.tutional 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 unconst.i.tutional. 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 a.s.serted in unmistakable language the sovereignty of the National Government. ”The people made the Const.i.tution 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 Const.i.tution 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 const.i.tutionality of the act establis.h.i.+ng the National Bank, and declared a state law imposing a tax on a branch of the Bank unconst.i.tutional and void. In the course of his opinion, which followed much the same line of reasoning that Alexander Hamilton had employed, Marshall stated in cla.s.sic phraseology the doctrine of liberal construction. Holding that the Const.i.tution was not a code of law, but a doc.u.ment 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 Const.i.tution, 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 Const.i.tution, are const.i.tutional.” 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 Const.i.tution.”
The c.u.mulative 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 Const.i.tution_ (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 Const.i.tution 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 a.s.saults. ”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 unconst.i.tutional 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 pet.i.tion 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 a.s.sembly 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 const.i.tutionality of the Bank and declared the state tax unconst.i.tutional. The State was ultimately obliged to make rest.i.tution of the funds of the Bank.
[Map: Ca.n.a.ls in the United States about 1825]