THE UNION scarcely had been formed, we have noted, by the ratification of New Hampshire in June of 1788, before conflicts began between State and Federal authority. Such conflicts have continued, from that day to this, as the States have struggled to maintain the role promised them under the Constitution, and the centralists of passing generations have endeavored to wrest it from them.

Yet there is much to be learned, even in mid-twentieth century, from the conflict between State and Federal power over the years. Many of the questions propounded by a Spencer Roane, a John C. Calhoun, a Thomas McKean, cannot be answered satisfactorily by Federalist sympathisers to this day. These great conservatives of the American Constitutional union captured the essence of our fundamental law; they saw, with great prescience, the absolute necessity of preserving strong State and local governments if a despotism from Washington were not to replace the despotism of George III. They recognized, in a way that has escaped us now, that government is most responsive to the people when it is closest to the people; as government becomes more remote from the sovereign power, it becomes less responsible, less susceptible to check and control.

Aboard the Active on the night of September 6, 1778, were Gideon Olmstead, a middle-aged Connecticut sailor, and three other countrymen who earlier had been captured by the British and taken to Jamaica. They were being returned to New York to be put in a military prison there. But late at night, the four Americans fell upon Captain Underwood of the Active. “In pursuance of this bold and hazardous design,” it was to be chronicled later, “they secured the captain and crew under deck, and contemplated running the sloop into Egg Harbor,” but “a considerable contest then arose between those under, and those on deck, for the command of the vessel.”(1) This contest continued throughout the day on September 7. On September 8, with the sloop only a few miles out of Egg Harbor, the brigantine Convention, Captain Thomas Houston, hove in sight and opened fire on the Active. Minutes later, Houston boarded the Active and took control. Meanwhile, the Convention’s consort, the privateer sloop Le Gerard, Captain James Josiah, had come in sight and joined the engagement.

Houston sent the captured sloop on to Philadelphia, where the vessel was libelled as a prize of war on September 14. The proceeding marked the beginning of thirty years of litigation and bitter conflict between Pennsylvania and the Federal government. To understand the position of the adversaries, it is necessary to look back briefly to November, 1775, when the Continental Congress, at the request of Washington, had recommended to the member States that they establish admiralty courts for handling prize cases. The act thus passed provided for appeal to the Congress from such State proceedings, but also requested the States “to provide that all trials in such case be had by a jury, under such qualifications as to the respective legislatures shall seem expedient.”

Pursuant to this request, the Pennsylvania Legislature set about establishing a Court of Admiralty at Philadelphia; and on the very day after the Convention had seized the Active, before the sloop had reached port, the Legislature adopted an act providing for jury trials in prize cases, with this qualification—that from a jury’s finding of fact, no appeal could be taken. It was most unusual for juries to be provided in prize proceedings; indeed, Pennsylvania’s law, in this regard, was repealed in 1780. But it happened to be the fate of Gideon Olmstead that the Active was libelled before a new judge, in a new court, under a new and brief-lived system of jury trial; and that the jury, on November 5, rejected his claim for the whole of the prize. It was Olmstead’s contention that he and his mates had wholly subdued Captain Underwood at the time the Convention came alongside; it was the position of the libellants that the struggle for command of the Active had not ceased when Convention and Le Gerard hove in view. On this issue, the case went to the jury; and the jury, after hearing the witnesses, gave one-fourth of the prize to Olmstead and his fellows, one-fourth to Le Gerard, and one-half to Houston and the Convention. A half of Houston’s portion was to go to the Commonwealth of Pennsylvania, which had fitted and commissioned the brig for action.

Olmstead, disappointed, appealed to Congress. In December of 1778, a four-man committee of the Congress heard his petition and proceeded to reverse Judge Ross; the committee awarded the entire prize to Olmstead. Pennsylvania was outraged by the decision. Had not Pennsylvania done what the Congress had asked? Had not a State Court of Admirality been created? Had not juries been provided for? Did not Pennsylvania have the right to provide that from her juries’ findings of fact, no appeal could be taken? With the warm support of State authorities, Judge Ross indignantly refused to respect the committee’s decree. On December 28, he announced that the jury’s verdict, so far as he was concerned, remained in full force. The following week, General Arnold, equally indignant, advised Congress that Judge Ross was “standing out obstinately against any orders that may be given.”(2) Arnold predicted, with much truth, that before Olmstead were through with the case, “he will have the whole State to contend with,” Judge Ross continued to hold firm; and when the Congressional committee, on January 4, issued an injunction to the marshal to detain the prize money, Judge Ross defied the committee, requisitioned the proceeds of the auction, and distributed the award.

That was how it began. Off and on through the rest of 1779, the Congressional commissioners negotiated with Pennsylvania, but got nowhere. In January of 1780, the Pennsylvania Legislature adopted a resolution declaring that further efforts by Congress to obtain “the money of this State” would be considered “as a high infringement on the honor and rights of the Commonwealth.”(3) For quite some time, the case languished. Olmstead, growing older, continued to press his claim upon the Pennsylvania Legislature, and Pennsylvania continued to refuse him. Meanwhile, the Articles of Confederation gave way to the new Constitution; Judge Ross died; several hundred miles away, in New Hampshire, a wholly separate prize case, ultimately to be controlling, moved to a head(4); in Georgia, the Chisholm case arose, and led to the Eleventh Amendment.

Fourteen years after the capture of the Active, in 1792, the persistent Olmstead filed suit in the Court of Common Pleas of Lancaster County against Judge Ross’s executors, still seeking his prize money. By this time, the sum had been deposited with David Rittenhouse, State Treasurer; and though Olmstead won by default in the trial court, he lost again on subsequent appeal: Chief Justice McKean, a jurist of towering reputation whose views of State and Federal relationships will be reviewed somewhat later in these notes, held that “the decree of the Committee of Appeals was contrary to the provisions of the act of Congress and of the General Assembly, extra judicial, erroneous and void.”(5)

Three more years passed; but if the sequence of events in the Olmstead case is to be understood, it is desirable now to look briefly toward New Hampshire and the closely parallel case which arose there. In October of 1777, a controversy developed out of the capture of the brig Susannah by the privateer McClary. A prize suit followed, in which a New Hampshire State Court of Admiralty awarded the proceeds to one Penhallow, owner of the McClary, against the counter-claim of a group of Massachusetts seamen led by Elisha Doane. This judgment was sustained on appeal to the State Supreme Court, but just as Olmstead was to do, Doane appealed to Congress; and in September of 1783, the newly erected Court of Appeals in Cases of Capture undertook to reverse the New Hampshire court and restore the prize to Doane. Again, State authorities resentfully spurned the decision, and for ten years the case languished. But with a new Constitution, and new Federal courts, Doane revived his action before the United States Circuit Court for New Hampshire. He won an order in October, 1793 directing payment of the original proceeds with interest for sixteen years.

New Hampshire, even as Pennsylvania, was outraged. In February, 1794, the New Hampshire Legislature adopted a resolution denying emphatically that a Federal court created under the Constitution of 1788 could reverse the decree of a New Hampshire State court in 1777. During the Revolutionary period, it was insisted, “New Hampshire had a right to pass a law final in every way concerning the capture of vessels by this State, or citizens thereof, from the British.”(6) After all, said the resolution, the States are forbidden by the new Constitution to make retrospective laws: “The Legislature conceived that Congress was under the same obligations; and that their courts could not re judge cases that were finally adjudged by courts existing prior to its adoption.” In New Hampshire’s view, the Congress that existed under the Articles of Confederation “was merely an advisory body.” The States were separate and autonomous; and an effort to unsettle the proceedings of the States prior to the ratification of the Constitution “will inevitably involve the States . . . in confusion, and will weaken, if not perhaps destroy, the National Government.” Terming the Federal Court’s decree an “illegal act of power,” New Hampshire protested strongly against it.

The protest was unavailing. In February, 1795, the United States Supreme Court held that Federal courts created under the new Constitution could, indeed, review decisions of the old Court of Appeals in Cases of Capture. The decision is an important one. Speaking for the Court, Justice Paterson rejected the position urged by New Hampshire: “The truth is, that the States, individually, were not known nor recognized as sovereign, by foreign nations, nor are they now; the States collectively, under Congress, as the connecting point, or head, were acknowledged by foreign powers as sovereign.” Somewhat vaguely, he continued: “Before Articles of Confederation were ratified, or even formed, a league of some kind subsisted among the States; and whether that league originated in compact, or a sort of tacit consent, resulting from the situation, the exigencies of the times, and the nature of the warfare, or from a combination, is utterly immaterial.”(7)

It is difficult to follow Paterson in his reasoning. The States were, in fact, “recognized as sovereign” by the highest possible authority—the authority of Great Britain, in the treaty ending the war. They were recognized, individually, not as one nation, but rather as entities. They had declared themselves, in 1776, to be “Free and Independent States.” Mr. Justice Iredell, dissenting, emphasized some of these points: Each of the States, or provinces, he said, was a separate body politic, “and the several provinces were not otherwise connected with each other than as being subject to the same common sovereign.”(8)

Citizens of the different States were as foreigners to one another. They had formed themselves into different States, and as States had conveyed “by each body politic separately, and not by all the people in the several provinces, or States, jointly.”(9) Thus, in Iredell’s view, what New Hampshire had done in 1777 was peculiarly the business of New Hampshire, and no longer subject to review.

But the majority of the Court prevailed. New Hampshire again protested strongly, and her second remonstrance, of January 16, 1795, merits quotation for twentieth century readers. Do these views sound familiar? The New Hampshire legislators, again remonstrating against “a violation of State independence and an unwarrantable encroachment in the courts of the United States,” declared that the attempts “repeatedly made to render the laws of this State . . . null and void [are] a flagrant insult to the principle of the Revolution. . . .” Then the resolution asked:

Thus spoke New Hampshire, but Congress and the Court were deaf. Back in Connecticut, however, Olmstead took heart. Hoping to emulate Doane’s success, he dug out of his sea chest the records of his suit in 1792, and in 1802 filed a new proceeding in the United States District Court at Philadelphia, this time against Elizabeth Sergeant and Esther Waters, daughters and executrices of the late State Treasurer, David Rittenhouse. In January, 1803, Judge Peters ruled in Olmstead’s favor, but prudently declined to issue process until the matter could be reviewed once more by the Supreme Court of the United States.

Chief Justice John Marshall took it: “If the legislatures of the several States,” he said “may at will annul the judgments of the courts of the United States, and destroy the right acquired under these 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.”(10) The act passed by Pennyslvania, he noted, did not assert “the universal right of the State to interpose in every case whatever.” What Pennsylvania had done was to question the Federal court’s jurisdiction on two grounds: First, that the old Congress, under the Articles of Confederation, had no authority to reverse the original finding of fact by a jury in Judge Ross’ Admiralty Court in 1778, with the result that the case had been finally settled many years before; and secondly, that Olmstead, as a citizen of Connecticut, could not, under the new Eleventh Amendment, bring suit against Pennsylvania. Marshall brushed off the first objection by saying that the Penhallow case had settled that issue; of the second, he insisted that Pennsylvania was not actually a party to the suit—the defendants were Mrs. Sergeant and Mrs. Waters: “It is deemed perfectly clear that no title whatever to the certificates in question was vested in the State of Pennsylvania.”

Let Marshal Smith tell the story: On March 25, he went to Mrs. Sergeant’s house, but “Upon my approach a sentinel who was placed at the door presented his bayonet at my breast.” When he attempted to get past Sergeant Cole and his detachment, “I was driven from the pavement . . . and was repelled by the whole guard with charged bayonets.”(11) Marshal Smith then called for a chair, and when this was provided, hoisted himself upon it to read a proclamation to the assembled crowd. He lectured them on the subject of Federal authority, promised to summon a posse of two thousand men if need be, and then retired.

For three weeks, General Bright’s detachment held “Fort Rittenhouse,” but at last Marshal Smith eluded the guard. “I got into the house,” he was to testify, “went into the back parlour, where I saw two young ladies and young gentlemen, who were exceedingly alarmed.” But doing his duty as he saw it, the marshal served his papers and departed.

It was the government’s position that Pennsylvania’s interposition should be ignored altogether: If Judge Peters’ original order were void, the action of the Pennsylvania Legislature was needless; if his order were valid, Pennsylvania’s action could not make it less so. It was the position of the defense that Pennsylvania had acted throughout in defense of her sovereign rights, and that General Bright was wholly within the State’s authority in interceding against an arbitrary and unconstitutional action by the marshal. On this division, the case went to trial.

The jury went out between five and six o’clock on the evening of Saturday, April 30. After supper, the clerk summoned them back to the court to inquire if they had reached a verdict. “One of the jurors said they had not, and he saw no prospect that they ever would, and therefore hoped they might be discharged.” Instead, Washington ordered them back to the jury room. At ten-thirty they came back in, but mainly to report that “one of the jurors has had a strong convulsion fit, and another was very much indisposed.” Washington ordered them locked up over the weekend. On Sunday afternoon, it was to develop later, one of the jurors, Mathias Corless, slipped out the back door of the court house at Sixth and Chestnut streets, and merrily made his way across to the Shakespeare Hotel, a tavern, intent on a cooling drink.

And whereas the causes and reasons which have produced this conflict between the general and State government should be made known, not only that the State may be justified to her sister States, who are equally interested in the preservation of the State rights; but to evince to the Government of the United States that the Legislature, in resisting encroachments on their rights, are not acting in a spirit of hostility to the legitimate powers of the United States courts; but are actuated by a disposition to compromise, and to guard against future collisions of power, by an amendment to the Constitution; and that, whilst they are contending for the rights of the State, that it will be attributed to a desire for preserving the Federal government itself, the best features of which must depend upon keeping up a just balance between the general and State governments, as guaranteed by the Constitution,

Be it therefore known, that the present unhappy dispute has arisen out of the following circumstances. . . .(12)

And Pennsylvania thereupon proceeded to spell out her case. In one aspect, it was a good and sound case. “It is clear,” said the resolution, “that David Rittenhouse could not have received a farthing of the money as David Rittenhouse, but as Treasurer of the State only, and by order of the State.” Hence it was, in actual fact, the State itself that was being sued, in violation of the Eleventh Amendment. “If this can be done, the amendment . . . is a dead letter. The State can act under its laws only by its agents. Its moneys remain in the hands of its Treasurers. If the officers can be converted by the decree of a judge, into mere stakeholders, there can, perhaps, be no possible case in which the Constitution may not be invaded.”(13)

Then Pennsylvania had this to say, and let it be read in the context of the mid-twentieth century:

Although the Legislature reverence the Constitution of the United States and its lawful authorities, yet there is a respect due to the solemn and public acts, and to the honor and dignity of our own State, and the unvarying assertion of her right, for a period of thirty years, which right ought not to be relinquished. . . .

An assertion of right for a period of thirty years. May a question be interpolated? What do the good people of Pennsylvania say today of a State right asserted unvaryingly for a period of nearly ninety years? Is this not entitled to respect? Pennsylvania once thought so.

And the resolution of April 3, 1809, went on to say other things worth repeating today. The Legislature of Pennsylvania acknowledged the supremacy of the general government, and cheerfully submitted to its authority “so far as that authority is delegated by the Constitution of the United States.” But beyond that point?

Resolved, that should the independence of the States, as secured by the Constitution, be destroyed, the liberties of the people in so extensive a country cannot long survive. To suffer the United States’ courts to decide on STATE RIGHTS will, from a bias in favor of power, necessarily destroy the FEDERAL PART of our Government: And whenever the government of the United States becomes consolidated, we may learn from the history of nations what will be the event.(14) [Emphasis in the original.]

Pause for a moment. Let us note the language. Pennsylvania, in April of 1809, was speaking: Should the States keep yielding to usurpations of power by the Federal courts, the rights of the States would be swept away. Is that not precisely what has happened in our own time? By failing to resist judicial encroachments, the States have indeed seen their rights one by one swept away, as the United States have become more consolidated and the liberties of the people more inexorably infringed.

That is about all that remains to be said of the Olmstead case. On April 17, 1809, some ten days before General Bright went on trial, counsel for Mrs. Sergeant had applied for a writ of habeas corpus to free her from the marshal’s custody. Chief Justice Tilghman, of the Pennsylvania court, concluded that he had power to free her from Federal custody, if the evidence justified him in doing so: His right to issue a writ “flows from the nature of our Federal Constitution, which leaves to the several States absolute supremacy in all cases in which it is not yielded to the United States.”(15) “The United States have no power, legislative or judicial, except what is derived from the Constitution,” Chief Justice Tilghman said.

When these powers are clearly exceeded, the independence of the States, and the peace of the Union, demand that the State courts should, in cases brought properly before them, give redress. There is no law which forbids it; their oath of office exacts it, and, if they do not, what course is to be taken? We must be reduced to the miserable extremity of opposing force to force, and arraying citizen against citizen; for it is vain to expect that the States will submit to manifest and flagrant usurpations of power by the United States, if (which God forbid) they should attempt them.

Nevertheless, Judge Tilghman regretfully held that Federal authority had been exercised properly, and refused to release Mrs. Sergeant. At long last, on April 26, Governor Snyder released the contested sum to Olmstead.

The following January of 1810, it must be confessed to Virginia’s shame, the General Assembly at Richmond adopted resolutions that were far removed from her resolutions of 1798 and 1799. This time, replying to Pennsylvania’s resolution of 1809, the Virginia Assembly declared that the Supreme Court of the United States had been provided “to decide disputes between the State and Federal judiciary,” and Virginia praised the Supreme Court judges as men “selected from those in the United States who are most celebrated for virtue and legal learning.”(16) The duties they have to perform, said Virginia then, “lead them necessarily to the most enlarged and accurate acquaintance with the jurisdiction of the Federal and several State courts together, and with the admirable symmetry of our government.” Further, “the tenure of their offices enables them to pronounce the sound and correct opinions they may have formed, without fear, favor, or partiality.” In time, it may be interpolated, Virginia’s view on this score was to change radically.

To this resolution from Virginia, Pennsylvania put in the last word on February 3, 1810. A committee report was brought forward in the State Senate declaring flatly that

the committee are of opinion, that the Constitution of the United States has been violated by the decision of the judge, and the constitutional rights of the State invaded. The question then occurs, in what manner is a State to defend her rights against such invasion? It has already been observed, that the Constitution of the United States guarantees to each State a republican form of government; that the powers not delegated to the United States are reserved to the States respectively. Without entering into a detail of the rights reserved or not delegated, suffice it to say that “the right of acquiring, possessing and protecting property” is one. If this be not one of the powers not delegated, then indeed a State is in a worse and more degraded situation than the most obscure individual, whose property cannot be taken from him when fairly acquired, without his consent, even for publick use, without compensation. . . .

It may be asked, who is to decide the question? If it be alleged that the State has not the right, it may justly be replied, the power invading it, has not. It is a case unprovided for in the Constitution, and there is no common umpire. . . . [Emphasis supplied.]

Yet it is important to note that the States frequently have interposed their sovereign powers through their own judiciary. As early as 1791, it was noted earlier, North Carolina’s Supreme Court bluntly refused to comply with a Federal court order attempting to transfer a case from State to Federal jurisdiction.(17)

But it was in Pennsylvania, in 1798, that the position of the State judiciary was expounded at length for the first time. The expounder was one of the most remarkable jurists of the early years of our country, the redoubtable Judge Thomas McKean.

He was born in 1734; he rose to manhood in the turbulent decades of revolution against Great Britain; he was a signer of the Declaration of Independence. For several years, he held the remarkable distinction of occupying public office simultaneously in two States—as Assemblyman and later Congressman from Delaware, and as Chief Justice of Pennsylvania. Toward the middle of the 1780’s, however, he settled permanently in Philadelphia, and took an active part in the Pennsylvania Convention of 1787, by urging adoption of the new Constitution. Never at a loss for a well-turned phrase, he there compared the arguments of those who opposed the Constitution to “the feeble noise occasioned by the working of small beer.”(18) An active and partisan Federalist, he nevertheless reserved strong apprehensions against excessive power in the Federal government. These apprehensions burst forth in 1798, when he wrote the unanimous opinion of his court denying a petition filed by one William Cobbet in a certain libel proceeding.(19)

This was a criminal case, in which the defendant Cobbet had been placed under bond as a common libeller. When he continued his libelous publications, an action was instituted against him. Cobbet pleaded that he was an alien, a subject of Great Britain, and demanded that his case be removed for trial into the United States Circuit Court. Counsel for the Commonwealth argued that to grant such a motion “would prostrate the authority of the individual States.” The mischief that had been apprehended prior to the Eleventh Amendment, in allowing States to be sued in the Supreme Court, would be recreated by allowing them to be forced into the Circuit courts.

Chief Justice McKean and his associates unanimously rejected Cobbet’s petition; and what McKean had to say(20) merits quotation at some length.

“Our system of government,” said Chief Justice McKean, “seems to me to differ, in form and spirit, from all other governments that have heretofore existed in the world.” Following the reasoning of Madison in the Federalist(21) and in the Virginia Convention of 1788,(22) McKean found the Union “as to some particulars national, in others Federal, and in all the residue territorial, or in districts called States.” Continuing, he said:

The division of power between the national, Federal, and State governments (all derived from the same source, the authority of the people) must be collected from the Constitution of the United States. Before it was adopted, the several States had absolute and unlimited sovereignty within their respective boundaries; all the powers, legislative, executive and judicial, excepting those granted to Congress under the old Constitution. They now enjoy them all, excepting such as are granted to the government of the United States by the present instrument and the adopted amendments, which are for particular purposes only.

The government of the United States forms a part of the government of each State; its jurisdiction extends to the providing for the common defense against exterior injuries and violence, the regulation of commerce, and other matters specially enumerated in the Constitution; all other powers remain in the individual States, comprehending the interior and other concerns. These combined, form one complete government.

Should there be any defect in this form of government, or any collision occur, it cannot be remedied by the sole act of the Congress or the State; the people must be resorted to, for enlargement or modification. If a State should differ with the United States about the construction of them, there is no common umpire but the people, who should adjust the affair by making amendments in the constitutional way, or suffer from the defect. . . .

There is no provision in the Constitution, that in such a case the judges of the Supreme Court of the United States shall control and be conclusive; neither can the Congress by a law confer that power. There appears to be a defect in this matter. . . .

As events proved, of course, the remedy—if it was a remedy—was found in John Marshall’s bold assertions of power. It is here contended that the defect described by McKean more than one hundred fifty years ago remains a major defect to this day.

The Cobbet case is important in part because it was cited at length in the next major contest that arose between State and Federal judiciaries—the prolonged litigation in Virginia over the lands of Lord Fairfax. The case began in 1796, and did not end until 1816. Things moved at a far more leisurely pace in those days. The suit was enormously complicated. It will suffice for our purposes to note that a contest arose involving the validity of a grant made by the General Assembly of Virginia in 1789 to one David Hunter. The land conveyed was a part of the vast holding that earlier (in 1736) had been granted by the English crown to Thomas Lord Fairfax. It was contended by the heirs of Lord Fairfax that Virginia’s grant to Hunter was prohibited by the terms of the treaty of 1783 which ended the Revolutionary war. It was contended by Hunter, as plaintiff, that the State grant was wholly valid. On the question, so drawn, the trial court at Winchester ruled in favor of the Fairfax heirs, but on appeal, the Virginia Supreme Court of Appeals reversed the trial court and found for Hunter.(23) It was a split decision. Judge Fleming felt the treaty of 1783 had some effect, but on balance he felt title should go to Hunter. Judge Roane felt the treaty had nothing to do with the case, and he too felt title should go to Hunter.

But the heirs appealed, and in 1813 the Supreme Court of the United States reversed the Virginia Supreme Court and ordered the judgment of the Winchester court affirmed.(24) Now, that was not the first time the Supreme Court of the United States had reversed a State court, and it is not clear why this case, above all cases, should have “excited all that attention from the bench and bar which its great importance truly merited.”(25) The fact is that the Supreme Court’s action did stir great resentment; and matters were not helped by a tactlessly worded mandate which “hereby commanded” that further proceedings be had agreeable to the judgment and instructions of the Supreme Court.

Six days were consumed in argument before the Virginia Supreme Court on the disposition of this mandate. What the Virginia court had to say is set forth fully in the old reports. It still has meaning today. Judge Cabell led off: “My investigations,” he said, “have terminated in the conviction that the Constitution of the United States does not warrant the power which the act of Congress”—that was the Judiciary Act of 1789”—purports to confer on the Federal judiciary.” He went on to lay down, precisely and cogently, the essential separation of powers for which Virginians are contending to this very day. He said:

Why was no such tribunal provided to settle disputes between the States and the Federal government the States mutually had created? Cabell thought that probably the omission proceeded from the belief “that such a tribunal would produce evils greater than those of the occasional collisions which it would be designed to remedy.” But in any event, he observed, “to give to the general government, or any of its departments, a direct and controlling operation upon the State departments, as such, would be to change at once the whole character of our system.” The result, he said, would be this: “The independence of the State authorities would be extinguished, and a superiority, unknown to the Constitution, would be created, which would sooner or later terminate in an entire consolidation of the States into one complete national sovereignty.” It was a prophetic remark.

Cabell argued that to admit this appellate jurisdiction would be to place the State courts “at the feet of the Federal courts, and make them the unwilling instruments of their usurpation of State rights.” He would have no part of it.

It remained only for Judge Fleming to concur with his brothers. Together, they joined in a unanimous opinion “that the appellate power of the Supreme Court of the United States does not extend to this court, under a sound construction of the Constitution of the United States . . . and that obedience to its mandate be declined by this court.”

Happily or unhappily—men will disagree on the point—the case then went back to Story and Marshall, and in 1816 Mr. Justice Story made the Supreme Court’s opinion stick.(26) It had been a wonderful fight, as they say, while it lasted. There are many Americans, not thought of as devout men, who pray earnestly that one day the fight may be resumed.

THE INTERPOSITION of Pennsylvania in the Olmstead case, and Virginia’s spirited resistance in the Fairfax suit, coincided with massive resistance by other States to Federal authority on a matter of far greater importance. In a brief chronicle of the Embargo Crisis, and the measures of the New England States against the embargo laws, may be found some notable precedents for the resistance of Southern States to unconstitutional decrees in our own time. It will be seen that Massachusetts, Connecticut, and Rhode Island once equally cherished their State powers as they conceived them; they, too, interposed to arrest the progress of what seemed to them a deliberate, palpable, and dangerous evil. It will be recalled that the war between France and England, which erupted with such fury following the Reign of Terror in the spring and summer of 1793, subsided for a time in the closing years of the century. But in 1803, when sale of the Louisiana Territory enriched Napoleon’s treasury, the conflict broke out anew. Before the end of 1804, Napoleon had crowned himself emperor at Notre Dame; in May of 1805, at Milan, he placed upon his head the iron crown of the old Lombard kings. Great Britain, Russia and Austria, breathing new life into their Triple Alliance of 1795, arrayed themselves against him, but the conquering Napoleon swept onward: Nelson’s victory at Trafalgar in October of 1805 was more than offset by Austria’s defeat at Ulm that same month, and by Napoleon’s triumph at Austerlitz in December. By mid-summer of 1806, German opposition to Napoleon had all but collapsed; in the fall, the victorious French dealt the Prussians a cruel blow at Jena.

In the summer of 1807, the balance of national sentiment tipped against Britain in the outrageous affair of the Chesapeake, an American vessel halted by the British Leopard and contemptuously boarded by British sailors. For the first time, Republican measures against Britain began to gain widespread support; and on December 18, 1807, a month after new British decrees were imposed against neutral trade, Jefferson asked Congress for an embargo against all shipping. Four days later, the Embargo Act was law.

For the space of a month or so, even parts of New England went along. The Massachusetts General Court, which soon was to level against Jefferson the spirit of States’ rights he himself had advanced in the Kentucky Resolutions just ten years earlier, at first praised the embargo as “a wise and highly expedient measure, . . . calculated to secure to us the blessings of peace.”(27) In Southern States, though the embargo would hurt them gravely also, hostility to the British gave support to Jefferson’s plan.

But the first Embargo Act of December, 1807, was followed by supplementary laws in January and March of 1808, and finally by the severe law of April 25, which authorized the President to detain all coasting vessels upon suspicion of intent to evade the embargo. With this last enactment, New England revived her bitter resentment. Two years earlier, when Congress had adopted a non-importation act to prohibit the admission of British products, the people of New England had rendered it ineffective by widespread smuggling. Now this smuggling trade was defiantly expanded, especially in Vermont and New Hampshire. On Lake Champlain and in Passamaquoddy Bay, all along the St. Lawrence, and from Newport, Portland, Nantucket, and Martha’s Vineyard, smugglers actively plied their trade.(28) To these measures of the resentful people, the State governments added official harass-ments of their own. During the summer of 1808, Rhode Island actively interposed through her judiciary, when State courts at Newport effectively prevented detention of vessels under the April enactment. In August, New York’s Governor Tompkins coldly refused to assist a Federal collector at Oswego who sought help in enforcing the embargo regulations.

Throughout the autumn, members of Congress from New England States continued strenuously to assert the unconstitutionality of the Embargo Acts. Across the seas, the hated Napoleon, his tide of empire not yet turned, swept triumphantly into Madrid and turned his eyes toward Rome. And as American vessels swung idly at anchor in New England harbors, a spirit of secession began to kindle among a rebellious people.(29)

In the light of that brief and oversimplified chronology, it is useful now to turn to the resolutions of the various State legislatures in the early months of 1809. The Southern States of today, interposing their sovereign powers in another cause, may perhaps be forgiven a gentle reminder to old friends north of the Potomac: This, gentlemen, is what you said then.

Delaware came first, on January 30, 1809. The Embargo Acts (and especially the new “Force Act” just signed by Jefferson on January 9) were “an invasion of the liberty of the people and [of] the constitutional sovereignty of the State governments.” And while Delaware would submit to “unwise and arbitrary laws, rather than resort to violence,” Delaware would seek every constitutional remedy that could be found for the evils under which her people suffered.(30)

Then Massachusetts. The Lieutenant Governor, Levi Lincoln, an ardent follower of Jefferson, having succeeded to the chief magistracy on the Governor’s death, sent to the Legislature a message deprecating Federalist agitation against the laws of the land and asking an end to opposition. To this address, both Senate and House responded with ringing statements. These merit attention in our own not less turbulent time.

The government of the Union, said the Massachusetts Senate then, “is a confederation of equal and independent States with limited powers.” The Senate agreed, of course, with a comment by Governor Lincoln that while measures “are pending and ripening” in Congress, the States have every right to question the justness or policy of any proposal.” But do State rights end there? Governor Lincoln thought so. The Senate did not. Its resolution observed:

. . . we learn with concern from your Honour, that there are stages when questions involving unalienable rights—“can be no longer open to controversy and opposition”—“stages when an end must be put to debate and a decision then resulting be respected by its prompt and faithful execution, or government loses its existence and the people are ruined.” . . . We owe it to ourselves and to the people distinctly to deny this doctrine, at once novel and pernicious.(31)

A distinction must be drawn, said the Senate, between the respect that is owed to valid laws, and the respect that cannot be required of the people for laws “unwarranted by the commission given to their rulers.” In this case, the people manifestly regarded the Embargo Acts as a usurpation of their most cherished liberties. What, then, was the duty of the General Court? “The people have not sent us here to surrender their rights, but to maintain and defend them.”

The Massachusetts House also responded warmly to Governor Lincoln’s assertion that a time had come to end objection and opposition to a distasteful law:

We cannot agree with your Honour that in a free country there is any stage at which the constitutionality of an act may no longer be open to discussion and debate; at least it is only upon the high road to despotism that such stages can be found.

At such a point the Government, undertaking to extend its powers beyond the limits of the Constitution, degenerates into tyranny.(32)

It may be inquired, perhaps, by this citizen of Virginia who offers these notes for public review, if there be any essential difference between an unconstitutional decree by a court, and an unconstitutional enactment by its separate but equal branch of the Federal government? The paragraph that follows from the resolution of the Massachusetts House, it may be urged, applies no less to the judgment of a court than to an act of the Congress.

Were it true, that the measures of government once passed into an act, the constitutionality of that act is stamped with the seal of infallibility, and is no longer a subject for the deliberation or remonstrance of the citizen, to what monstrous lengths might not an arbitrary and tyrannical administration carry its power. . . . Were such doctrine sound, what species of oppression might not be inflicted on the prostrate liberties of our country? If such a doctrine were true, our Constitution would be nothing but a name—nay, worse, a fatal instrument to sanctify oppression, and legalize the tyranny which inflicts it.(33)

On February 15, 1809, both houses of the Massachusetts General Court concurred in a resolution declaring their solemn conviction that the Embargo Acts are “in many particulars, unjust, oppressive, and unconstitutional.” To be sure, mere expression of opinion could not in itself be “decisive of the question.” But through the interposition of “peaceful and legal remedies,” Massachusetts proposed to protect her citizens against violations of their rights. “While this State maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of the State government.”(34)

Massachusetts then solemnly declared that in the view of its Legislature, the embargo was “not legally binding on the citizens of this State.” (Emphasis supplied.) Yet until the embargo were repealed, it was urged not that the law be obeyed, but only that “all parties aggrieved by the operation of this act . . . abstain from forcible resistance.”

We may look also to Connecticut. Do her press, and her professors, and her legislators now frown upon the South? This was what Connecticut said then:

The General Assembly are decided in the opinion, and do Resolve, that the acts aforesaid are . . . grievous to the good people of this State, dangerous to their common liberties, incompatible with the Constitution of the United States, and encroaching upon the immunities of this State.(35)

But Connecticut did not stop with mere expression of opinion. Her resolution directed all persons holding executive office in the State not to afford “any official aid or co-operation in the execution of the act aforesaid.” And more ominously still, Connecticut’s Legislature directed that the Governor be requested, “as commander in chief of the military force of this State,” to cause the resolution to be published in general orders. Let us note also this paragraph:

Resolved, that to preserve the Union, and support the Constitution of the United States, it becomes the duty of the Legislatures of the States, in such a crisis of affairs, vigilantly to watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people; and that a due regard to this duty, will not permit this Assembly to assist, or concur in giving effect to the aforesaid unconstitutional act, passed, to enforce the embargo.(36)

(Are the legislatures of the Southern States, today, it may be asked, fairly to be condemned by their New England brethren for viewing their responsibilities exactly as Connecticut and Massachusetts viewed their own responsibilities a century and a half ago? Is it to be urged that both were wrong, Connecticut then, Virginia now? Or is it not equally possible that New England legislatures were right then, in protecting the most intimate concerns of their people, and Southern legislatures are equally right today?)

Finally, brief note may be made of a concluding resolution on the embargo, adopted by the General Assembly of Rhode Island on March 4, 1809, the very day that the hated laws expired at the direction of Congress. The embargo, said Rhode Island flatly, had been an “unconstitutional” proscription on the people. In resisting it, the people of Rhode Island as one of the parties to the Federal compact, had a right to express their opposition; and the General Assembly, for its part, had a duty as the organ of their sentiments and the depositary of their authority,

to interpose for the purpose of protecting them from the ruinous inflictions of usurped and unconstitutional power.(37)

The duty of the States to interpose, thus expressed by Rhode Island at the time of the Embargo Crisis, remains in the view of this citizen of Virginia a high and undiminished duty of the States in our own generation.

LET US remain in New England for a while. It is a strong land, strong peopled, strong principled; and for all the blood they have shed against each other, the South and New England hold much in common. The row houses of Beacon Street are brothers to those of King Street, and the many-steepled valleys of Vermont have their clean and quiet counterparts in the Great Smokies and the Shenandoah Valley. The Southerner, traveling in New England, often finds a spiritual kinship in the courtesy and reserve of the people he meets; and no less certainly does the advocate of States’ rights, searching the history of Massachusetts, Connecticut, Rhode Island, and Vermont, find in their high-spirited past repeated expressions of New England’s devotion to the responsible role assigned to the States.

The detested embargo was abandoned, we have noted, in March of 1809, only to give way to a non-intercourse act almost equally resented. In April of 1810, John Randolph of Roanoke described this proscription in characteristic language: “It has been reprobated and reviled by every man, of every political description, in this House and out of it, from one end of the country to another.” Why, then was it kept on the books? “Is it a sort of scarecrow, set up to frighten the great belligerents of Europe? Or is it a toy, a rattle, a bare plaything, to amuse the great children of our political world?”(38)

Certainly New England was not amused. Her commerce still suffered, her ships still were idled. Worse yet, blundering British diplomacy (by which Madison first was encouraged to believe that Britain would suspend her restrictions on trade, only to be abruptly disabused of the thought) added to national feeling against the government of George III. Bitterly, the Federalists saw Republicans make large gains in Congress and in State legislatures; and to the insult of affairs abroad was added fresh injury at home, in the furious controversy of 1811 over the admission of Louisiana. To an angered New England, this was fresh evidence of the declining influence of the East. Secession was talked openly on the village greens, and in Congress a melancholy Josiah Quincy commented sadly that it soon would be the duty of some of the States “to prepare definitely for a separation.”(39)

It was in this spirit of total discontent that the Federalists voted solidly against Madison’s request in June 1812 for a declaration of war against Great Britain. The resolution carried by the feeble vote of 19-13 in the Senate and 79-49 in the House. To the Federalists, it was Madison’s war—and Clay’s and young Calhoun’s; it was “a party and not a national war,” entered into by a “divided people.” In Massachusetts, the Legislature rebelliously adopted resolutions urging her male citizens not to volunteer except for defense operations; the Governor proclaimed a public fast to atone for the wickedness of the administration’s action.(40)

Nevertheless, as Southern States are so often reminded in another context these days, the declaration of war was the supreme law of the land. There was no question of the constitutional power of Congress to declare war. But we may well inquire: Where was the “spirit of willing compliance,” to which Southern States are abjured so strenuously just now, in the New England of 1812?

War was declared on June 18. On the 22nd, General Dearborn, by authority of the President, called upon both Massachusetts and Connecticut to supply detachments of their militia for coastal defense. Governor Caleb Strong of Massachusetts flatly refused to comply. Under the Constitution, he said, Congress could provide for calling forth the militia on three grounds only: To execute the laws of the Union, to suppress insurrection, or to repel invasion. For his own part, he could not perceive that any of these exigencies was present. The Supreme Judicial Court of Massachusetts agreed with him: Judges Parson, Sewall, and Parker, asked for an advisory opinion, agreed that the right to decide when the militia would be ordered to duty was a right “not delegated to the United States by the Constitution, nor prohibited by it to the States; it is reserved to the States respectively, and from the nature of the power, it must be exercised by those with whom the States have respectively entrusted the chief command of the militia.”(41)

Governor Griswold of Connecticut took precisely the same view. On June 29, he convened his executive council, which advised him to reject General Dearborn’s requisition. In August, the General Assembly of Connecticut warmly concurred in the Governor’s course of resistance. If the State militia could be called out upon the sole decision of Federal authority, said the Assembly’s resolution of August 25, it would have the effect of converting the militia into standing troops of the United States. The Assembly was “not able to discover that the Constitution of the United States justifies this claim.”

Let us note carefully what the Assembly next declared—this is Connecticut speaking:

The people of this State were among the first to adopt that Constitution. . . . They have a deep interest in its preservation, and are still disposed to yield a willing and prompt obedience to all the legitimate requirements of the Constitution of the United States.

But it must not be forgotten, that the State of Connecticut is a FREE SOVEREIGN and INDEPENDENT State; that the United States are a confederacy of States; that we are a confederated and not a consolidated Republic. The Governor of this State is under a high and solemn obligation, “to maintain the lawful rights and privileges thereof, as a sovereign, free and independent State,” as he is “to support the Constitution of the United States,” and the obligation to support the latter imposes an additional obligation to support the former. The building cannot stand, if the pillars upon which it rests, are impaired or destroyed.(42) [Emphasis in the original.]

And because Connecticut, as a State, did not agree that Madison had authority to requisition her militia “to assist in carrying on an offensive war,” Connecticut refused to participate until New England should in fact be threatened “by an actual invasion of any portion of our territory.”

In the case of Vermont, there is a sequel to the story that may be briefly noted. By a proclamation of November 10, Governor Chittenden commanded the recall of a part of the Vermont militia that was then serving under Federal command “for the defense of a neighboring State.” Vermont’s troops refused to obey this command and arrested the Governor’s agent. A resolution then was offered in Congress instructing the prosecution of the Governor for treason. A counter resolution was offered in Massachusetts, “pledging the support of the State to the Governor and people of Vermont in their efforts to maintain their constitutional rights.”(43) Quite a rash of other resolutions then broke out. New Jersey, in February of 1814, regarded “with contempt and abhorrence, the ravings of an infuriated faction, either as issuing from a legislative body, a maniac Governor, or discontented and ambitious demagogues.” In March, Pennsylvania also denounced Governor Chittenden, and viewed “with utmost concern and disapprobation every attempt to screen from just punishment any individual or individuals, however exalted by station, who may violate the Con-stitution or laws of the United States.”

The report first reviewed the protests of the town meetings against the December embargo:

This is the spirit of our Union, and thus has it been explained by the very man [Madison], who now sets at defiance all the principles of his early political life.(44)

What course could the Legislature pursue? Three avenues had been suggested. One was a memorial to Congress, but that would be useless: “It has been again, and again resorted to, and with no other effect than to increase the evils complained of.” Secondly, laws might be adopted to punish violations of the security of the people of Massachusetts in their property; but sufficient State laws already existed: “No act of this Legislature can afford any additional security.” Thirdly, following the proposal of Madison himself in the Virginia Resolution, a convention of States could be urged, “for the purpose of devising proper measures to procure the united efforts of the commercial States, to obtain such amendments or explanations of the Constitution, as will secure them from future evils.”

As events worked out, the conscription bill was defeated. Webster, tossing his massive head in a roaring denunciation of the conduct of the war, condemned the bill as “this horrible lottery”—not only unconstitutional, but worse than unconstitutional: “’tis murder.”(45) But Congress did pass, however, a “Bill in regard to the Enlistment of Minors”; and Connecticut, in January, 1815, promptly undertook to nullify its provisions by adopting her own “Act to Secure the Rights of Parents, Masters and Guardians.” The act required judges to release on habeas corpus all minors enlisted without the consent of their parents or guardians, and provided for fines and imprisonment against any person concerned in such enlistment who should remove any such minor out of the State.(46) Massachusetts, the following month, enacted a similar law.

All else did fail. The peace commission, in the spring, had nothing of a favorable nature to report. Meanwhile, the British, who earlier had capitalized upon Federalist sentiment in New England by leaving her ports relatively free of blockade, now began turning on pressure. During the summer, the blockade was extended, and coastal raids became a matter of increasing concern. In August came the capture of Washington, and near collapse of the national government. New England Federalists were not greatly concerned.(47) But when British troops began to occupy parts of Maine and Massachusetts, New England States, which earlier had been so indifferent to needs of the United States Army, now cried out for Federal forces. When these were not promptly provided, the Legislatures turned to their own militia. Early in September, Governor Strong of Massachusetts called out 5,000 militiamen, and summoned a special session of the General Court for October 5. A committee of the Legislature brought in a report accusing the national administration of deliberately neglecting the defense of Massachusetts. The day of salvation had passed, said the committee, unless Massachusetts discarded an administration “which made war for party purposes.”(48)

It was evident, said the committee, that the present Constitution did not give the Eastern States their proper rights; the usual means of amending the Constitution were inadequate to the emergency. It was recommended, therefore, that a convention be called to undertake the task.

The resolution thereupon adopted, in addition to providing for the raising of a State army of ten thousand men, called for the appointment of twelve delegates to confer with delegates from other New England States. They were to discuss measures of common defense, and also, “should they deem it expedient,” were “to lay the foundation for a radical reform in the national compact, by inviting to a further convention, a deputation from all the States in the Union.”

Rhode Island accepted warmly on November 5. “The Legislature and the whole people of this State already but too well know how frequently and fruitlessly they have petitioned the Federal government for some portion of those means of defense for which we have paid so dearly, and to which, by the Constitution, we are so fully entitled.” But these petitions had gone unheeded, or been answered only by “unmeaning professions and promises never performed, but generally by telling us to protect ourselves.” Rhode Island and her sister States were not compelled to continue to accept such mistreatment “by a government we have ourselves created.”

Connecticut also accepted the invitation of Massachusetts, and though neither Vermont nor New Hampshire officially accepted, both were represented when the convention began at Hartford on December 15.

Now, the Hartford Convention of 1814 has often been ridiculed. It has been described as a “purely party assemblage, lacking the united support of New England.”(49) Its proposals for constitutional amendment later were to be “unqualifiedly rejected” by New Jersey, denounced severely by New York, condemned in a long report from Pennsylvania, and rejected without comment by Vermont, Virginia, North Carolina, Ohio, Tennessee, and Louisiana.

Yet this assemblage ought not to be so cavalierly disdained. The twenty-six delegates who met in the counsel chamber of the State House at Hartford included some outstanding men—the Chief Justice and an associate justice of the Supreme Court of Connecticut, the Chief Justice of Rhode Island, former United States Senator George Cabot of Massachusetts, and Harrison Grey Otis, an outstanding Federalist who had represented Massachusetts in Congress. Among others present were Nathan Dane, author of the Ordinance of 1798; Stephen Longfellow, father of the poet; Timothy Bigelow, Speaker of the Massachusetts House of Representatives; Chauncey Goodrich, Lieutenant Governor of Connecticut; Senator James Hillhouse of New Haven, Treasurer of Yale College, and several leading members of the State legislatures.

The convention met in closed session from December 15 until January 4, when its report was formally adopted. It is true, as William Edward Buckley said of it, that much of the report “took the tone of a party platform.”(50) It opened with an account of the virtues of Federalist administrations and the general incompetence and corruption of the Republican administrations. Among the amendments proposed to the Constitution was a patently political proposal, aimed at ending the Virginia dynasty, by which no President could be eligible for reelection, nor could Presidents be elected from the same State for successive terms. Another proposed amendment, recalling Jefferson’s Secretary of the Treasury, Albert Gallatin, would have barred naturalized citizens from serving in Congress or holding any civil office under the national government. Other proposed changes in the Constitution would have based representation in Congress (and votes in the electoral college) solely upon the number of free inhabitants of the States; required a two-thirds vote of both Houses of Congress to admit new States or to declare war; limited any embargoes laid by Congress to sixty days; and required that any act shutting off commercial relations with a foreign nation must pass Congress by a two-thirds vote. The last group of proposals, it will be seen, were concerned not with partisan politics as such, but with the concerns that had dominated New England since the first embargo six years earlier.

Harrison Gray Otis, who was to spend much of the remainder of his life defending the Hartford Convention,(51) made some of these points in A Short Account of the Hartford Convention, which he published at Boston in 1823. Here he notes, for example, that the Massachusetts House of Representatives, which had approved the call of the convention in October of 1814 by a vote of 260 to 90, the following year adopted a new report, defending and approving the Hartford resolutions, by an equally impressive vote of 159 to 48. Also, the year after the “blundering” Hartford Convention, Massachusetts voters returned Caleb Strong to the Governorship by the same “relative majority as he had received the year before.” Evidently the delegates were not repudiated by their own people.

Another major grievance of the New England States, repeatedly emphasized by their members in Congress, was the refusal of the United States to pay members of the State militia who had served in defending any part of the United States. The Hartford Convention also had asked for redress on this score, and a bill carrying out the proposal had passed the United States Senate and was on its way to the House when news of peace arrived. “What is this,” asked Otis, “but acknowledging in plain and direct terms the justice and propriety of all the proceedings of New England during the war?” Up until the very moment that news of the peace arrived, he insists, “the government was not only disposed but prepared to comply with every proposition contained in the commission.”(52)

It is not the purpose of the author of these notes either to applaud or to condemn the conduct of the New England States in this period of 1808-15; the purpose is simply to recount what happened. The States interposed, and to a very large extent, they succeeded in obtaining the ends which they, as States, deemed so vitally important to their own interests: They undertook to nullify the whole series of acts relating to non-intercourse, non-importation, and embargo. Taking a strict construction of the constitutional provision relating to calling forth the militia, they succeeded in challenging national authority throughout the whole of the war. Their interposition was influential in defeating a conscription bill they regarded as unconstitutional; and when a corollary bill actually was approved, relating to the enlistment of minors, they effectively nullified it with State laws of their own. Until the day that news was received in Washington of Jackson’s victory and the Treaty of Ghent, they were well on their way to achieving two of the most important objects sought by the Hartford Convention. Throughout this period, the interposing States repeatedly asserted, in the strongest and most unequivocal terms, their view of the Union as a confederacy in which the sovereignty and the broad reserved rights of the States must be respected. They did not hesitate to term actions of the Federal government “unconstitutional and void,” and they laid down, as a deliberate, and considered public policy, a program of steadfast resistance to what they deemed encroachments upon their powers.

SOME of the greatest embarrassments of the Madison administration during the War of 1812 stemmed from the inability of the government efficiently to finance its operations. The charter of the first Bank of the United States expired in 1811, and a hostile Congress, divided by factionalism and genuinely concerned at the constitutional issues of a national bank, stubbornly refused to renew it. By 1813, the Treasury was desperate. Efforts to float war loans met with the resentful disdain of State banks. Legitimate revenues of the government could not be transferred for lack of a national common medium of exchange. By 1814, the Treasury itself could no longer pay interest on the national debt. In Boston, Philadelphia, and New York, the Federal government found itself unable to redeem treasury notes. The War Department could not pay a bill for $3,500. The State Department could not even pay for its stationery.(53)

In this chaotic state of affairs, many Republicans deserted their principles of strict construction: Even Calhoun came to support the second Bank of the United States, and took a decisive part in the leadership that led finally to the act of April 10, 1816, recreating the bank under a twenty-year charter.

Scarcely had the bank been revived, however, before it ran into grave difficulties through mismanagement, speculation, and fraud.(54) Stock-jobbers and gamblers manipulated its securities shamefully. In Baltimore, some especially fraudulent transactions ironically centered around Cashier James W. McCulloch, whose name soon was to be identified with the bank’s preservation.(55)

In a desperate effort to retrieve itself from difficulties, the Bank of the United States began calling upon State banks for repayment of loans. But the State banks themselves were far overextended, and often unable to pay. In the resulting constriction of credit, hundreds of merchants, farmers, and storekeepers found themselves in bondage to “the monster.” At one point, the bank owned “a large part of Cincinnati” through such foreclosures,(56) but communities in North Carolina, Kentucky, and Indiana were scarcely less afflicted. As trade began to dry up and merchants dunned their impoverished creditors, a wave of hostility toward the Bank of the United States swept the country.

The animosity of the people was soon reflected in acts of their State governments. Indiana in 1816 and Illinois in 1818 inserted provisions in their Constitutions prohibiting the Bank of the United States from establishing branches within their jurisdictions. North Carolina imposed a tax of $5,000 on the Fayetteville branch. Georgia ordered a tax of 31¼¢ on every $100 of the bank’s stock. Maryland in 1817 undertook to impose a tax of $15,000 a year on the bank’s Baltimore branch. Tennessee levied a tax of $50,000 per year, and Kentucky exceeded this with a tax of $60,000 per year.(57)

Believing that these State taxes would bring destruction of the bank, Federal authorities hastily drummed up a contest in Maryland, in the certain conviction that John Marshall would bring home a decision in their favor. He did not disappoint them. In February of 1819, Marshall handed down one of his half-dozen most important decisions, in the renowned case of McCulloch vs. Maryland.(58) This decision is so well known, and so widely quoted, that no good purpose would be served by reviewing it at any length. Here Marshall gave the broadest possible construction to that clause of the Constitution which authorizes the Congress to pass whatever laws may be “necessary or proper” to carry out functions of the Federal government. On this point, Marshall held that “necessary” should be understood to mean no more than “convenient,” or “useful,” or “conducive to.” “Let the end be legitimate,” he said, “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.”(59)

On the second point, he explored at great length Maryland’s contention—an entirely sound and proper contention, in the view of the author of these notes—that the Constitution did not emanate from the broad mass of the people, but “as the act of sovereign and independent States.” But Marshall, of course, found it “difficult to sustain” this self-evident proposition that the powers of the General government had been delegated by the States. It was true, he had to admit, that the Constitution had been ratified by the people in their respective States, but what of this? “Where else should they have assembled?” No political dreamer was ever wild enough, Marshall asserted, “to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act as States.” But Marshall, dogmatically refusing to distinguish between a “State” and a “State government,” thoroughly confused the essential point here at issue. He threw a sop in the direction of strict construction: “The principle that [the Federal government] can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends . . . found it necessary to urge.” But prophetically, he remarked that “the question respecting the extent of the powers actually granted, is perpetually, arising, and will probably continue to arise, as long as our system shall exist.” Then, agreeing that the States have an undoubted power to tax within their jurisdictions, he denied that the bank was within their reach; it was a creature of the Federal government, of all the people, beyond the power of any State or group of States. “That the power to tax involves the power to destroy,” he observed, in the most famous line from this decision, is a proposition not to be denied.

And who would declare and define that supremacy of the Federal government? Why, John Marshall, to be sure, Chief Justice of the Federal government’s Supreme Court. The States that had created the Constitution, and bound themselves by their mutual compact, were to have no effective voice in saying what the compact meant. Presumably all the people, through the Congress, had approved the bank; therefore none of the people, through their States, could disapprove it. When the people acted nationally, as Marshall thought, to aggrandize the powers of the Federal government, the people were right; when the identical people acted as States, to restrict the Federal agency, they were wrong.

His opinion, to be sure, did not go unchallenged. One of the most lucid, and indeed overwhelming criticisms of Marshall’s doctrines, came in Virginia from Spencer Roane, chief judge of the State’s Supreme Court. It was an accident of fortune, and a most unlucky one, that saw Roane writing letters to the Richmond Enquirer while Marshall wrote law on the Court. Their positions could easily have been reversed. Historians are agreed that had Ellsworth not retired from the Court in time for Adams to name Marshall Chief Justice, the incoming Jefferson would have appointed Roane to the place Marshall was to occupy.(60) In that event, we might have enjoyed a government as our government constitutionally was intended to be, by a federation of sovereign States jointly controlling their mutual agent, the Federal government. Roane ranks among the greatest “might have beens” of our history. He was a man of towering integrity, great eloquence, and profound convictions on the nature of the Union. He was a States’ Righter in a way that his high-tempered father-in-law, Patrick Henry, could never have been, for Roane’s views were grounded in a depth of penetrating thought that the more colorful Henry rarely brought to his public statements.

The Supreme Court’s decision in the McCulloch case, Roane was to write, served to expunge the words “necessary and proper” from the Constitution. And “great as is the confidence of the nation in all its tribunals, they are not at liberty to change the meaning of our language” or effectively “to change the Constitution.”(61) More than this, in Roane’s view, the court “had no power to adjudicate away the reserved rights of a sovereign member of the confederacy, and vest them in the general government.”

With great insight, Roane observed that it is ever the tendency of man to submit, little by little, to infractions of the fundamental law; the American people had not rebelled against George III until a general declaration had come along, asserting for the British Parliament a right to legislate for the American colonies “in all cases whatsoever.” In the McCulloch case, Roane perceived the same sort of general declaration: “If the limits imposed on the general government, by the Constitution, are stricken off, they have literally, the power to legislate for us ‘in all cases whatsoever’: and then we may bid a last adieu to the State governments.”

By its opinion in the McCulloch case, said Roane, the Court had laid down principles that “tend directly to consolidation of the States, and to strip them of some of the most important attributes of their sovereignty.” Yet the truth was, that the respective States never had consented to a consolidated government. As sovereign States, true, they jointly had delegated some of their powers, but they did not become less sovereign thereafter. They remained separate, respective States. He asked incredulously how Marshall could hold otherwise: “The States . . . gave birth to the Constitution; they support its existence, and they alone are capable of reforming or changing its form and substance, and yet we are informed by a solemn adjudication that its powers are not derived from that source, and consequently, that they are not parties to it!”

It has, however, been supposed by some that the Constitution has provided a remedy for every evil: That the right of the State governments to protest against, or to resist encroachments on their authority is taken away, and transferred to the Federal judiciary, whose power extends to all cases arising under the Constitution; that the Supreme Court is the umpire to decide between the States on the one side, and the United States on the other, in all questions touching the constitutionality of laws, or acts of the Executive. There are many cases which can never be brought before that tribunal, and I do humbly conceive that the States never could have committed an act of such egregious folly as to agree that their umpire should be altogether appointed and paid by the other party. The Supreme Court may be a perfectly impartial tribunal to decide between two States, but cannot be considered in that point of view when the contest lies between the United States and one of its members.(62) [Emphasis supplied.]

Thus, in Roane’s view, the States not only had a right to tax the Bank of the United States; they also had a right to resist the Supreme Court’s pronouncement until the States themselves had settled the question of contested power by their own arbitrament. It is evident that his views were widely shared. Despite the McCulloch opinion, many of the States continued to resist the bank. Georgia in 1819, and again in 1821, adopted particularly harassing enactments, designed to bar the bank from suing in Federal Courts.(63)

It was in Ohio, however, that events came to a climax. No State had suffered more grievously than Ohio from the disastrous inflation brought about by the bank’s first years of blundering mismanagement.(64) This hatred of the bank was manifested by an act of the Ohio Legislature in 1819—enacted in the teeth of the McCulloch decision—levying a tax of $50,000 per year on each of the bank’s two branches in the State. This tax was to become due on September 15, 1820, but the bank, having protested vainly against the levy, refused to pay and instead obtained an injunction from a Federal judge against its collection.

Before the injunction could be served, however, State Auditor Osborn ordered one of his deputies, John L. Harper, to collect the tax by persuasion if he could, but by violence if he must. Entering the bank’s branch office at Chillicothe, on the morning of September 17, Harper made one last request for voluntary payment. When this was denied, he leaped over the counter, strode into the bank vaults, and helped himself to $100,000 in paper and specie.(65) He then turned this over to a deputy, one H. M. Currie; and Mr. Currie, stuffing this considerable hoard into a small trunk, with which the party thoughtfully had come equipped, loaded the trunk into his wagon and set off down the road to Columbus.

The committee are aware of the doctrine, that the Federal courts are exclusively vested with jurisdiction to declare, in the last resort, the true interpretation of the Constitution of the United States. To this doctrine, in the latitude contended for, they never can give their assent.(66)

An express provision of the Constitution, said Ohio, places the States, in suits brought against them by individuals, beyond the jurisdiction of the Federal courts. Citing the Kentucky and Virginia Resolutions, and quoting at length from Madison’s Report of 1799, the Ohio Legislature declared that the elections of 1800— the “Jefferson Revolution”—gave the sanction of the people themselves to the view that even the Supreme Court must bow to the supreme people of the States.

Thus has the question, whether the Federal Courts are the sole expositors of the Constitution of the United Slates in the last resort, or whether the States, “as in all other cases of compact among parties having no common judge,” have an equal right to interpret that Constitution for themselves, where their sovereign rights are involved, been decided against the pretension of the Federal judges by the people themselves, the true source of all legitimate powers.

John Marshall’s Court was wrong, said Ohio bluntly, in the McCulloch case; and because the Court’s opinion had encroached so unwarrantably upon the reserved powers of the States, there was no obligation upon Ohio to acquiesce therein. After all, the resolution continued, it was one thing for the Court to define a right, and another for the right to be exercised. Had not William Marbury, the appointee of Adams, been told that he had a right to his commission as justice of the peace? Yet was it not true that Marbury had never received it? Similarly, the Court had ruled that purchasers of the Yazoo lands were entitled to their property. “But the decision availed them nothing, unless as a make-weight in effecting compromise.”

For this purpose the committee recommend that provisions be made by law, forbidding the keepers of our jails from receiving into their custody any person committed at the suit of the Bank of the United States, or for any injury done to them; prohibiting our judicial officers from taking acknowledgments of conveyance where the Bank is a party, or when made for their use, and our recorders from receiving or recording such conveyances; forbidding our courts, justices of the peace, judges and grand juries from taking any cognizance of any wrong alleged to have been committed upon any species of property owned by the Bank, or upon any of its corporate rights or privileges, and prohibiting our notaries public from protesting any notes or bills held by the Bank or their agents or made payable to them.

The Ohio Assembly went on to carry out many of these legislative recommendations, beginning with an act in January, 1821, withdrawing from the Bank of the United States “the protection and aid of the laws of the State in certain cases.” Meanwhile, the bank continued to prosecute its suit against the State auditor and State treasurer, and in September of 1821 obtained a decree in the Circuit Court ordering the State officials to restore the money. The State treasurer, one Sullivan, refused to obey this command. An attachment for contempt was issued against him, and he wasthrown into prison. The bank then obtained the appointment of commissioners who went into Sullivan’s cell, forcibly took from him the key to the State vaults, and thereupon helped themselves to the original $98,000—evidently still in the same trunk where Currie had placed it the year before.(67)

This action on the bank’s part served only to fan the public’s indignation, with the result that for three more years Ohio continued to harass the bank’s operations in every way that could be devised. The State officials took a further appeal to the Supreme Court, and in February, 1824, John Marshall wrote an end to the stormy litigation in an opinion reviewing and confirming the court’s position in the McCulloch case, and declaring Ohio’s tax law unconstitutional.

The opinion is an interesting exposition of Marshall’s strongly nationalist views, and is the more interesting for the evidence it offers of the Chief Justice’s progressively stronger attitude in this regard. Fifteen years earlier, in another case that curiously paralleled the Osborn case, officials of Georgia had forcibly entered the Savannah branch of the first Bank of the United States and seized $2,000 in payment of a State tax; but when the bank appealed, Marshall cautiously held that the bank had no power to sue in the Federal courts. Though it would appear that the first Bank of the United States was equally an instrument of national policy with the Second Bank of the United States, in 1809 Marshall took a narrower view. Or perhaps he felt that his opinion against Pennsylvania in the case of Judge Peters, announced at the same term, would be about all the resentful States would stand; in any event, he ducked the bank case in Georgia in 1809, but he managed it with characteristically Marshallian aplomb: The Supreme Court has an equal duty, he said piously, “to exercise jurisdiction where it is conferred, and not to usurp it where it is not conferred.”(68)

But in 1824, Marshall did not hesitate to declare that Federal courts had jurisdiction over the Bank of the United States’ various proceedings against State officers or State banks. If he were thus reversing the Georgia case of 1809, as Justice Johnson, dissenting, believed, Marshall was not concerned. Whether the decision of 1809 “be right or wrong,” he said briskly, a new case entirely was presented from Ohio. He brushed aside the State’s defense that the bank’s suit was in essence a suit against the State of Ohio itself: The State was not a party on the record. Further, if the agents of a State government were permitted to arrest the execution of Federal laws, or to prevent Federal instrumentalities from carrying on their functions, then each member of the Union would be capable, at its will,

of attacking the nation, of arresting its progress at every step, of acting vigorously and effectually in the execution of its designs; while the nation stands naked, stripped of its defensive armor, and incapable of shielding its agent or executing its laws. . . .(69)

Yet it may be asked, in reviewing these olympian pronouncements of Marshall’s Court, is not precisely the same objection valid as to Federal assaults upon State prerogatives? When Federal judges are free to attack the States, arrest the progress of their institutions, strip them naked of their reserved powers—what, then, are the States to do to shield their agents or execute their laws? Marshall’s response, presumably, to judge from his comments in the McCulloch case, would have been that the Federal government “is supreme within its sphere of action,” and a branch of the Federal government, the Supreme Court, will determine the boundaries of that sphere, blowing it up like a balloon as the Court pleases.

To be sure, no such authority to umpire State and Federal disputes ever had been given to the Supreme Court. As Calhoun and John Taylor of Caroline often noted, the power had indeed been expressly denied to the Court by the Convention of 1787, and for the obvious reason that Roane (and Madison, and Jefferson) so frequently laid down: “The Supreme Court is but a department of the general government. A department is not competent to do that to which the whole government is inadequate. . . . They cannot do it unless we tread underfoot the principle which forbids a party to decide his own cause.”(70)

But Marshall, having decided the Federal government’s own cause in 1819 and again in 1824, in the end could not prevail. The constitutional issues raised so vigorously by Ohio continued to hold widespread support. Resistance by the States to the bank was never abandoned.

In Kentucky in 1825, Governor Desha warmly adopted Ohio’s position: “When the general government encroaches upon the rights of the State,” he asked, “is it a safe principle to admit that a portion of the encroaching power shall have the right to determine finally whether an encroachment has been made or not? In fact, most of the encroachments made by the general government flow through the Supreme Court itself, the very tribunal which claims to be the final arbiter of all such disputes. What chance for justice have the States when the usurpers of their rights are made their judges? Just as much as individuals when judged by their oppressors. It is therefore believed to be the right, as it may hereafter become the duty of the State governments, to protect themselves from encroachments, and their citizens from oppression, by refusing obedience to the unconstitutional mandates of the Federal judges.”(71)

Nor was Kentucky alone. Despite the Court’s opinion in the McCulloch and Osborn cases, Tennessee did not repeal her tax law until 1827, and then by the narrowest of margins. Connecticut in 1829 devised a new scheme to harass the bank, and South Carolina in 1830 imposed a tax upon the dividends of stockholders resident in that State. With the election of Jackson, who hated all banks, this hostility on the part of the States gained new strength. New York and New Hampshire adopted strong resolutions urging that the bank not be rechartered, and Jackson’s veto of a premature recharter bill (July 10, 1832) won wide approval.

In the face of this unrelenting warfare, the bank could not survive. Withdrawal of the public deposits began in August of 1833, under Jackson’s order; and when Pennsylvania’s Governor Wolf, who had been one of the bank’s staunchest supporters, denounced the institution in his message to the Legislature in March of 1834, public opinion was fatally influenced against the bank.(72) The Pennsylvania Senate adopted fresh resolutions urging that the bank ought not to be rechartered. The following month, the United States House of Representatives adopted the same view, and the bank’s days came to an end.

Unless the people apply the proper corrective, the day, I fear, is not far distant when South Carolina shall be grievously assessed to pay for the cutting of a canal across Cape Cod. . . .(73)

What Governor Wilson might have said of a Central Arizona Project or an Upper Colorado Project can be imagined. His point, and assuredly it remains a valid point to this day, is that the Constitution at no point directly sanctions the vast “internal improvements” made under congressional authority. The power is at best an implied power, said to be necessary and proper to national defense, or to the establishment of post roads, or to the regulation of commerce among the States. So loose a construction, in Wilson’s view, was “an open violation of that which has heretofore universally been admitted the true rule for expounding all grants.”

The Senate of South Carolina agreed with Governor Wilson’s view of the internal improvements program, but the House of Representatives did not. Indeed, the South Carolina House adopted a resolution reciting stiffly that “the people have conferred no power upon their State Legislature to impugn the acts of the Federal government or the decisions of the Supreme Court of the United States.” By the following year, however, this view had changed: Both houses of the South Carolina Assembly agreed that “among those rights retained in this [Federal] Constitution to the people, is, the unalienable right of remonstrating against any encroachments upon that Constitution by the Congress of the United States, or any other officer belonging or acting under the general government.”(74) To restrain this birthright of protest “would be to establish that odious doctrine of non-resistance and perfect obedience.” In South Carolina’s view, “Congress does not possess the power, under the Constitution, to adopt a general system of internal improvements as a national measure.”

Just a week after South Carolina adopted this resolution, it is interesting to note, Thomas Jefferson, in a letter to Madison, suggested the desirability of Virginia’s passing new resolutions, in the spirit of 1798, denouncing the internal improvement laws as not warranted by the Constitution.(75) He enclosed with this letter a draft of a proposed “Virginia Protest,” to which every friend of States’ rights profitably may repair. Here Jefferson set forth in the clearest and most explicit language that “the right to construct roads, open canals, and effect other internal improvements within the territories and jurisdictions exclusively belonging to the several States” had never been delegated to the Congress, “but remains to each State among its domestic and unalienated powers, exercisable within itself and by its domestic authorities alone.”(76) But Jefferson was entirely agreeable to seeing this power specifically vested in the Federal government by appropriate constitutional amendment. He had commented in a letter to Edward Livingston the year before that he felt “there is not a State in the Union which would not give the power willingly.”(77) Surely, he felt, that would be better than to witness the continued distortion of the Constitution by the doctrine of “implied powers,” and the continued practice among Congressmen of the custom “which, with us, is called logging,’ the term of the farmers for their exchanges of aid in rolling together the logs of their newly-cleared grounds.”(78)

Madison, however, advised against Virginia’s adoption of the protest drafted by Jefferson,(79) and Jefferson dropped the idea. But on January 14, Maryland’s General Assembly adopted a resolution, replying to South Carolina’s action of the preceding month, in which Maryland asserted that Congress did indeed “possess the power . . . to adopt a general system of internal improvement.”(80) Virginia’s General Assembly then went ahead, in March, with a resolution very much along the lines Jefferson had suggested. Here Virginia specifically revived and confirmed her Resolution of 1798, and held that the right of the States to interpose, then asserted, applies “with full force” against the act directing a survey of routes for roads and canals. By an overwhelming vote (127-26 in the House, 12-8 in the Senate), Virginia declared that the appropriation of money for such purposes would be “a violation of the Constitution.” This “most solemn protest” was renewed in March of 1827 in further resolutions, temperately phrased, against Federal efforts to make internal improvements within the State.

Thus, when the time came in 1789 for Kentucky to be split off from Virginia, some provision necessarily had to be made covering the rights and interests of persons who held land in the Kentucky territory under grant from Virginia. By an act of the Virginia General Assembly on December 18, 1789, it was provided that as a condition of Kentucky’s formation, all such interests must remain as valid in the new State of Kentucky as they were in the parent State of Virginia. Kentucky accepted this condition and embodied the provision in her Constitution. In June, 1792, Kentucky entered the Union.

Immediately, Kentucky authorities encountered what Justice Johnson later was to describe as “the very peculiar nature of the land titles created by Virginia, and then floating over the State of Kentucky.”(81) Virginia had left matters “in a state of confusion [which] rendered it impossible for Kentucky to guaranty any specific tract to an individual.”(82) In an effort to achieve some stability, Kentucky in February, 1797, adopted an act concerning occupying claimants of land, and followed this with a supplementary act in January, 1812. Briefly, both acts provided that when any claimant to land, occupying property under a title he had some reason to regard as valid, should be ousted by a new claimant having a better title, the incoming owner should reimburse the former occupant for improvements made upon the land; further, the original occupant was to be excused from payment of rents to the owner who displaced him.

Obviously, these acts of 1797 and 1812, while they achieved some stability, achieved it largely in favor of Kentucky’s local interests and adversely to the interests of Virginia claimants. Inevitably, a series of acrimonious suits arose; and at last, one of these actions, brought by John Green and others against Richard Biddle, reached the Supreme Court of the United States. It was, like Fletcher vs. Peck (to be noted in the next section), a generally spurious piece of litigation: Biddle did not even appear by counsel.

On March 5, 1821, Justice Story handed down a unanimous opinion by the Court. It was held that the rights and interests of the rightful owners of the land had been secured by the agreement between Kentucky and Virginia in 1789; thus a contract had been entered into by Kentucky; under the Constitution, no State may impair the obligations of a contract; the two acts of 1797 and 1812, in the Court’s view, materially impaired these interests; their effect was to compel a rightful owner to pay “for improvements which he has not authorized, which he did not want, or which he may deem useless.”(83) Under Virginia law—under common law—this could not be sanctioned. Kentucky’s two occupying claimant laws, said the Court, were unconstitutional and void.

The decision created consternation in Kentucky. Henry Clay immediately came before the Court, as amicus curiae, to ask—and win—a rehearing. The Constitution, Clay insisted, prohibited the States from entering into compacts without the consent of Congress; in his view, Congress never had consented to the compact between Kentucky and Virginia in 1789—“It was no compact: It was mere negotiation.” It was not enough that Congress might have acquiesced tacitly over a period of nearly thirty years; some affirmative act of congressional consent was required.

The following October, Kentucky’s General Assembly adopted a long and generally temperate statement of protest against the Court’s decision.(84) Here it was pointed out that the two laws in question had been approved by Kentucky’s State courts over a long period of years. Virginia had acquiesced in Kentucky’s handling of the matter. The decree of the Supreme Court, in this “fictitious” case, was “incompatible with the powers of the State, and highly injurious to the best interests of the people.” Kentucky appointed commissioners to discuss the problem with Virginia, and confidently awaited a reversal by the Court when the case was reargued.

This hope proved vain. On February 27, 1823, in an opinion by Justice Washington, the Court again declared the acts of 1797 and 1812 invalid as an impairment of Kentucky’s compact of 1789 with Virginia. In the Court’s view, Congress had given all the consent required by the Constitution in the act admitting Kentucky into the Union.

From this opinion, Justice Johnson warmly dissented. Adverting to the chaotic condition of Virginia’s grants in the post-Revolutionary period, he observed that “land they were not, and yet all the attributes of real estate were extended to them.”(85) As often as not, these grants were no more than surveyor’s entries. In the nature of things, Kentucky had to take some action to quiet titles: It never was intended “that Kentucky should be forever chained down to a state of hopeless imbecility.”

The principles they would establish, and the effects they would produce, sink much deeper and would produce infinitely more permanent evils. They strike at the sovereignty of the State, and the right of the people to govern themselves.(86)

In December, the Assembly approved a long statement of Kentucky’s views. If the Court’s doctrines were correct, that “one unalterable system of laws was destined to regulate, in perpetuity, the concerns of the republics of America,” then why had not the States, on formation of the Union, been “melted down and their existence abolished”? Was sovereignty meaningless? Were the States no more than “dwarf vassals”?(87) The Assembly again protested firmly; and because the Court’s opinion the preceding February had been handed down by a 3-1 count, with three justices absent, it was urged that Congress provide by statute that no question growing out of the Constitution of the United States, involving the validity of State laws, could be decided without the concurrence of two-thirds of the full Court.

Again in January, 1824, the Kentucky Legislature assailed the Court for an opinion “which disrobes Kentucky of her sovereign power, and places her in a posture of degradation which she never would have consented, and never can consent, to occupy.”(88) Gentlemen, this is Kentucky speaking:

The construction of the Court which thus disfranchises the State of Kentucky, can neither exact the homage of the people upon whom it acts, for the intellect employed in making it, nor conciliate their patience under its humiliating and afflicting effects. If the same privative effects were attempted to be produced upon the individual and political rights of the people of Kentucky, by a foreign armed force, and they were not to repel it at every hazard, they would be denounced as a degenerate race, unworthy of their patriotic sires, who assisted in achieving the American Independence; as a people unworthy of enjoying the freedom they possessed. In that case, the United States, too, would be bound, at whatever hazard, to vindicate the right of the people of Kentucky to legislate over the territory of their State; to guarantee to them a republican form of government, which includes the right insisted on. And can it make any difference with the people of Kentucky, whether they are deprived of the right of regulating by law the territory which they inhabit, and the soil which they cultivate, by the Duke de Angoulème at the head of a French army, or by the erroneous construction of three of the judges of the Supreme Court of the United States? To them the privation of political and individual rights would be the same.

But though such a bill was reported favorably by the Senate in 1824, and debated approvingly over a period of months, in the end Congress took no action on Kentucky’s plea. In January of 1825, the Kentucky Legislature continued to protest, more angrily now than ever, against judicial control: “If the judges possessed the purity and wisdom of archangels, it would be unwise to concede to them the power contended for, unless they were also immortal; for however wisely and beneficently they might exercise it, their successors might exert it wickedly and oppressively.”(89) Was not the Constitution, in effect, the Bible of the people? Was it not their right to read it and construe the book of faith for themselves?

Would they be bound to adopt the exposition of it by their preacher, which was at war with the fundamental principles of their association and their creed? And which ought they to change—their creed or their pastor?(90)

Kentucky’s interposition reached its peak the following winter, when Governor Joseph Desha, in November, 1825, came before the Assembly. Reference already has been made to his denunciation of the Supreme Court, especially in regard to its decisions in the McCulloch and Osborn cases. He also pilloried the Court for its opinion in Green vs. Biddle, which was “spreading its baneful influences” across the State.

That same month, Kentucky’s Supreme Court added its potent strength to the State’s resistance. On November 15, having before it a case in which a claimant advanced the identical contention that Kentucky’s laws of 1797 and 1812 were void, the State court flatly refused to abide by the Supreme Court’s decree. Kentucky judges would respect any “settled” mandate of constitutional law, they said, but Green vs. Biddle had been decided by only three members of the Court; thus “it cannot be considered as having settled any constitutional principle.” The Kentucky judges hinted plainly that even if the full Court had been unanimous, they still would not have regarded the decision as having settled a point of law so plain to them.(91)

In December, the Kentucky House of Representatives supported the State judges with a bellicose resolution addressed to the Governor: Would he please inform them of

the mode deemed most advisable in the opinion of the Executive to refuse obedience to the decisions and mandates of the Supreme Court of the United States, considered erroneous and unconstitutional, and whether, in the opinion of the Executive, 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 the Court should be met by disobedience.(92)

To this Governor Desha replied, on December 14, with a suggestion that the Assemblymen “restrain their ardor and try yet a little while the pacific measures of an application to Congress.”(93)

That pretty well ended matters. Kentucky’s State courts and State officials continued adamantly to defy the Supreme Court’s decision in Green vs. Biddle; titles were recorded and land conveyed according to Kentucky’s claimant laws; and six years later the Supreme Court, in effect, surrendered. This time Justice Johnson spoke for the majority of the court. He coolly observed that the 1823 decision in Green vs. Biddle had been misunderstood; and over Baldwin’s dissent, the Court upheld a seven-year limitation act, adopted by Kentucky on title contests, which surely was as much an “impairment” of the compact of 1789 as anything that had gone before.

Kentucky had interposed her sovereign powers; and Kentucky had remained in the Union; and Kentucky had won.

This was the case of the Yazoo lands. It is so well known that only the briefest reference is necessary here. Subsequent to 1787, by reason of an agreement between Georgia and South Carolina, Georgia became possessed of vast lands south and west of the Savannah River extending to the Mississippi. These were the Yazoo lands, named for a river that formed a key boundary point. One effort to dispose of this enormous area ended abortively in 1789. But in January, 1795, a bill to dispose of the land was approved by the Georgia Legislature and reluctantly signed by the Governor—reluctantly, because the Legislature, almost down to the last man, had been shamefully bribed by a pack of scoundrels headed by U.S. Senator James Gunn. Under this fraudulent act, some 35,000,000 acres of land passed into the hands of speculators for $500,000. Some accounts place the total at 50,000,000 acres. But no account denies the total corruption of the Georgia Legislature. Scarcely had the bill been passed before the people, suddenly shocked into awareness, turned on their venal Legislators and threw them out of office. On February 13, 1796, the new Legislature passed an elaborate act rescinding the sale of 1795. Under this act, every reference to the Yazoo infamy was to be expunged from the records of the State, and any State official who thereafter took note of it was to be fined $1,000, and rendered forever incapable of holding public office. A fire was built in front of the Capitol, and as members of the newly chosen House and Senate filed around, a messenger of the House consigned the act of 1795 to the flames (kindled, symbolically, from the rays of the sun, as from “the burning rays of the lidless eyes of justice”), the while crying out, “God save the State! And long preserve her rights!! And may every attempt to injure them perish as these corrupt acts now do!!!”

But it was not so easy a matter, as Georgia was to discover, to expunge an act obtained by “atrocious peculation, corruption, and collusion.” For the Legislature of 1796 to void an act of the bribed Legislature of 1795, and render it “null and void,” was to encounter the objection of John Marshall’s Court that the act of 1795 constituted a contract between Georgia and the land purchasers, which contract could not constitutionally be impaired later on.(94) This was the gist of the Court’s famous ruling in Fletcher vs. Peck, by which it decided an obviously contrived piece of litigation brought by a pair of Massachusetts citizens who well knew of the potential cloud on the Yazoo title. John Peck technically sold 15,000 acres of Yazoo land to Robert Fletcher for $3,000, covenanting that his title of 1795 was valid. Justice Johnson penetrated the spurious nature of this suit in an acid comment that the proceeding “appears to me to bear strong evidence, upon the face of it, of being a mere feigned case.” But John Marshall, who had no objection to looking beyond the record when it suited him, this time stuck tenaciously to the record itself: “If the title be plainly deduced from a legislative act, which the legislature might constitutionally pass, if the act be clothed with all the requisite forms of a law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another, founded on the allegation that the act is a nullity, in consequence of the impure motives which influenced certain members of the legislature which passed the law.”(95)

This was in 1810, fifteen years after the original Yazoo act, eight years after Georgia had ceded all claim to the lands to the United States. But it was the first time the Supreme Court had held an act of a State unconstitutional, and the Court’s decision aroused a bitter reaction. This hostility is in a sense paradoxical; the Court’s opinion actually has served as a magnificent buttress for the rights of the States. Had the Court ruled otherwise, the door would have been opened for assault upon any act of a State legislature upon contentions of corruption or bribery. Nevertheless, Georgia wrathfully denounced the Court, and her representatives in Congress succeeded, over a period of several years, in frustrating the claims of the Yazoo purchasers.

Resentment on this issue scarcely had died down, however, before new controversies claimed Georgia’s concern. These involved two Indian tribes, the Creeks, and more importantly the Cherokees, which persisted in holding lands within the territorial limits of Georgia. Getting rid of the Creeks proved sufficiently difficult. When negotiations, petitions, memorials, and finally the Treaty of Indian Springs, in 1825, failed to dislodge them, Georgia’s fiery Governor Troup ordered a land survey launched by which the troublesome tribe would at last be ousted. Secretary of War Barbour, in May of 1825, advised Troup that this survey “could not be permitted.” To this Troup replied with a message denouncing “officious and impertinent intermeddlings” with domestic concerns.(96) “Stand by your arms,” he advised the Assembly; and the Assembly, for its part, “approved the exhortation with its whole heart.” There followed a series of letters between Troup and Barbour, chiefly notable for the extreme stand of State sovereignty the Georgia Governor maintained throughout. In his eyes, the Federal government was a foreign power with whom he engaged in “diplomatic intercourse.” In his letters to the War Department, Troup consistently requested the officer addressed to convey Georgia’s views to “your government.”

In 1826, the United States Senate undertook to ratify a new treaty with the Creeks, more favorable to the Indians than the one before. At this added injury, Georgia threw herself into the conflict with new zeal. Troup furiously ordered his surveyors back to work; and when Barbour, early in 1827, threatened to use “all the means” at the President’s command to stop it, Troup dispatched orders to the generals commanding the Sixth and Seventh Divisions of the State Militia to hold their troops in readiness “to repel any hostile invasion of the territory of this State.”(97) Then he wrote Barbour, with deadly effect, that from the first decisive act of hostility on Barbour’s part, “you will be considered as a public enemy.”

He took one more step also. Anticipating that an effort would be made by the Adams administration to obtain a ruling from the Supreme Court, upholding the President’s actions, Troup fired a message to the Georgia Assembly. “I am not wanting in confidence in the Supreme Court of the United States,” he said, “in all cases falling within their acknowledged jurisdiction.”

As men I would not hesitate to refer our cause to their arbitration or umpirage. On an amicable issue made up between the United States and ourselves, we might have had no difficulty in referring it to them as judges, protesting at the same time against the jurisdiction, and saving our rights of sovereignty. . . . But according to my limited conception, the Supreme Court is not made by the Constitution of the United States, the arbiter in controversies involving rights of sovereignty between the States and the United States . . . because that court, being of exclusive appointment by the government of the United States, will make the United States the judge in their own cause. . . .(98)

Shortly thereafter, the Federal government backed down; the surveyors continued peacefully at their assignment, and in time the Creeks went west.

Getting rid of the 10,000 Cherokees remaining in Georgia proved still more difficult. At that time, the Cherokees were well entrenched in what they chose to call their own “nation,” in the land now defined by Carroll, DeKalb, Gwinnett, Hall, and Haber-sham counties. There was some substance for their claim: The Cherokees had their own constitution, their own language, their own laws, their own courts, their own well-advanced civilization; they exchanged what amounted to ambassadors with Washington; they entered into treaties with the United States. But Georgia was not impressed by these amenities: The Cherokees occupied land that was plainly Georgia’s land, and the Federal government, in Georgia’s view, was doing nothing effective to remove them.

As one consequence of this resentment, Georgia in December, 1828, adopted an act extending her own criminal jurisdiction into the Cherokee territory. (A rumored discovery of gold in the Cherokee lands probably had something to do with this.) And soon thereafter, a nondescript Indian named George “Corn” Tassels was arrested under Georgia law, convicted of murder, and sentenced to be hanged. His counsel appealed to the United States Supreme Court, and the Court thereupon commanded Georgia to appear and make answer. The peremptory tone of Marshall’s order was a mistake: It aroused all the smoldering hostility of a proud and impatient people. Governor Gilmer, who had succeeded to the office, said flatly that Marshall’s order “will be disregarded; and any attempt to enforce such order will be resisted with whatever force the laws have placed at my command. If the judicial power thus attempted to be exercised by the courts of the United States is submitted to, or sustained, it must eventuate in the utter annihilation of the State governments, or in other consequences not less fatal to the peace and prosperity of our present highly favored country.” The Georgia Assembly vigorously supported him. In a resolution adopted in 1830, it declared that the right to punish crimes against the peace and good order of the State “is an original and a necessary part of sovereignty, which the State of Georgia has never parted with.” The Assembly viewed Marshall’s interference as “a flagrant violation” of Georgia’s rights, and directed the Governor and all other State officers “to disregard any and every mandate and process that has been or shall be served upon him or them purporting to proceed from the Chief Justice, or any associate justice, . . . for the purpose of arresting the execution of any of the criminal laws of this State.” More ominously still, the Assembly directed Governor Gilmer “to resist and repel any and every invasion, from whatever quarter, upon the administration of the criminal laws of this State” with all the force and means placed at his command.

Tassels was forthwith hanged, on Christmas Eve of 1830.(99) There seemed to be nothing more to be said.

Two days prior to Tassels’ demise, the Georgia Legislature adopted further laws designed to extend State jurisdiction over the Cherokee territory. The most important of these provisions undertook to prohibit any white person from residing in the Cherokee lands after March 1, 1831, without specific permission from the Governor. Meanwhile, the Cherokees had attempted to invoke the aid of John Marshall’s Supreme Court, and had won his sympathy but not his jurisdiction.(100) Marshall had termed the Cherokees not a nation, but rather a dependent domestic territory; the Chief Justice was not willing (considering President Jackson’s views and the demonstrated hostility of Georgia) to attempt to “control the legislature of Georgia, and to restrain the exertion of its physical force.”(101)

This opinion came down on March 18, 1831. Meanwhile, a band of Presbyterian missionaries, headed by Elizur Butler and Samuel A. Worcester, had deliberately settled in Cherokee land without consent of Governor Gilmer. The missionaries were arrested, brought on for trial in Gwinnett County, convicted, and sentenced September 15, 1831, to four-year terms in prison for violation of the December enactment. They appealed to the Supreme Court, and in January, 1832, Marshall ordered the convictions reversed.(102) But Governor Lumpkin, a gentleman imbued with the spirit, and succeeding to the office, of Troup and Gilmer, bluntly refused to release them. It was at this time—the comment is most probably apocryphal—that Jackson was said to have remarked, “John Marshall has made his decision—now let him enforce it.”(103) It was not until two full years later that the missionaries, having sought pardon, were released. In their first application, they made the tactical error of saying that there had been no change in their views “in regard to the principles on which we have acted.” To this, Governor Lumpkin replied that if they regarded these principles so highly, “they might stand on them in the penitentiary.” The desperate missionaries then wrote from the Milledgeville prison, apologizing, and at long last were released.

Georgia’s defiance of the court led both Massachusetts and Connecticut, in the spring of 1831, to adopt resolutions commending the Supreme Court and criticizing Georgia’s resistance. These good New England States had forgotten that fifteen or twenty years earlier, they too had resisted Federal authority in what seemed to them a palpable encroachment upon their rights. But they must have been impressed, even as they adopted their resolutions, by the self-evident fact that in the Tassels case and in the Worcester case, Georgia had interposed; and Georgia had remained in the Union; and Georgia had won.

THE GREAT nullification controversy of 1832 goes to the heart and soul of the constitutional doctrines advanced in this essay, and, as a consequence, must be treated at some length. In the interests of an orderly presentation, it is proposed first merely to chronicle what happened in this period, and to touch briefly upon the great personalities who figured in that drama; secondly, it is proposed to argue the essential soundness and constitutionality of nullification, when it is invoked as a last resort against dangerous and deliberate usurpations of authority by the Federal government.

The second act adopted by the First Congress of the United States, in 1789, was a tariff law which imposed duties on “goods, wares and merchandise imported.” Significantly, the act recited that its purpose was not alone to raise revenues for the support of government and the discharge of public debts, but also “for the encouragement and protection of manufactures.”(104) From that day until comparatively recent times,(105) students of the Constitution have vigorously debated the authority of Congress to utilize its taxing power beyond the aim of raising revenue. This first tariff law was so mild in its provisions, however, that few serious apprehensions were aroused; it was not until the tariff of 1816, imposing duties averaging about 20 per cent upon the covered imports, that a few cries of alarm began to be heard.(106) Again, these protests were not loud—Calhoun himself supported the tariff of 1816 (in an impulsive speech he was to regret all his life), and later was agreeable to accepting it as the basis for a permanent law.(107) But with the sharply increased tariff of 1824, which very nearly doubled the average rates of 1816, all the latent fears of free traders were aroused. The higher tariffs imposed a severe hardship upon Southern States especially: Cotton shirts, woolen blankets, and other staple items of an agrarian society, became suddenly more expensive, and this at a time when the South had virtually no industries of its own that might benefit from a protectionist policy.

At first, the protests of the Southern States were firm but temperate. South Carolina resolved, in December of 1825, that “a right to impose and collect taxes, does not authorize Congress to lay a tax for any other purposes than such as are necessarily embraced in the specific grants of power, and those necessarily implied therein.”(108) The following March, Virginia spoke through her Assembly: “The imposition of taxes and duties, by the Congress of the United States, for the purpose of protecting and encouraging domestic manufactures, is an unconstitutional exercise of power, and is highly oppressive and partial in its operation.”(109)

Advocates of high protective tariffs were firmly in the saddle, however, and though the woolen interests lost an important bill by Calhoun’s tie-breaking vote in February of 1827, the enthusiasm generated by the protectionists’ “Harrisburg Convention” the following summer set in motion an irresistible force. In considerable alarm, South Carolina’s Assembly spoke up with new resolutions in December of that year: Tariff laws designed not to raise revenue or to regulate commerce but for “the promotion of domestic manufactures,” are “violations of the Constitution in its spirit, and ought to be repealed.”(110) A week later, Georgia raised a truculent and sarcastic voice: “While manufacturing companies and self-created delegates, pretending to represent whole States, assemble for the purpose of directing the Congress what measures they must adopt, surely the Legislature of a State, without much violence to any known rule of modesty, may respectfully offer a counter remonstrance to such a growing temper of dictation.” And then, putting subtlety aside: “An increase of Tariff duties will and ought to be RESISTED by all legal and constitutional means, so as to avert the crying injustice of such an unconstitutional measure.”(111)

North Carolina, in January of 1828, interposed her objections: “The People of North Carolina . . . have seldom expressed a legislative opinion upon the measures of the general government.” But now, “a crisis has arisen in the political affairs of our country, which demands a prompt and decisive expression of public opinion.” Whenever policies of the Federal government strike “at the very foundation of the Union, it is the right of every member of the Confederacy to call their attention to the fundamental principles upon which the government was formed.” Should the offensive policies be persisted in, then “the question may fairly be discussed . . . whether the benefits of the Union are not more than counterbalanced by the evils.” In North Carolina’s considered view, Congress might have the naked power under the Constitution to impose a tariff for protective purposes, but such tariffs were a “direct violation of the spirit of that instrument.” Manufactures, in their essence, were not objects of general welfare but of local interest; and to protect the woolen interests of New England, at the price of an enormous tax upon the agriculture of the South, would be “fatal to the happiness, the morals, and the rights of a large portion of our common country.”(112)

Alabama also spoke up: “Let it be distinctly understood that Alabama, in common with the Southern and Southwestern States, regards the power assumed by the General Government to control her internal concerns, by protecting duties beyond the fair demands of the revenue, as a palpable usurpation of a power not given by the Constitution.” And Alabama pledged “the most determined and unyielding resistance” to this effort “to pamper the gentlemen wool-growers and wool-carders of the Northeast . . . at a time when agriculture is languishing and prostrate, yielding a bare support to those who pursue it.”(113)

To these warning cries from the South, Massachusetts, Ohio, Pennsylvania, Rhode Island, Indiana, and New York responded with resolutions of their own, defending the policy of protective tariffs and indeed urging higher levies.(114) The Northeastern forces prevailed. On May 19, 1828, Congress adopted what came to be known thereafter as the “Tariff of Abominations.” Measured by any yardstick, it was a bad bill. The tariff on woolens climbed again, but the act was so rigged that on the cheaper grades of woolen cloth, a tax of nearly 200 per cent was imposed. To the Southern farmer, the act imposed disastrous burdens on hemp, cotton bagging, iron, clothing for slaves. Just as the embargo and non-intercourse laws, twenty years earlier, had heavily damaged the economy of New England, so the Tariff of Abominations, coinciding with other adverse factors, now caused intense hardship among the agrarian States.

In the spring of 1827, Calhoun came home. He had been in Washington for almost sixteen years, living first in a boarding house, later in the gracious brick mansion in Georgetown Heights that would be known as Dumbarton Oaks. He was badly in need of a rest, of a period of quiet away from the tensions of Washington. Hence he came home to the quiet land of Up-Country Carolina, to the Seneca River, to the peaceful fields of Pendleton District. He came back to his white-pillared home at the crest of a hill, and there he did something few men in public life find time to do today: He sat and thought, undisturbed, gazing across the fields, now rising to consult a book or document, now composing a letter to Littleton Waller Tazewell in Norfolk, but mostly he engaged in that hardest of all exercises: Pure thought. What was the nature of the Union? Where was sovereignty, he asked himself, and what was sovereignty, and how was it exercised? How could a “great local interest” be preserved?(115)

Out of those long days of thought and reading and correspondence, that summer of 1827, there began to emerge a pattern. If the federal character of the Union were to be maintained, then the dignity of the respective States must be maintained. At some point, he came to realize, there must be a power inherent in the nature of each member State by which it could protect its constitutionally reserved rights without withdrawing from the Union.

The following summer, with the Tariff of Abominations now written into law, Calhoun came home again. He found all South Carolina in ferment. The leaders of the State were not talking of petitions or compromise; they were talking openly of secession. Among them was the colorful George McDuffie, a tall, slender man, possessed of passionate convictions in the field of States’ rights and gifted with an eloquent voice to defend them. Another was Charleston’s “Jimmy Hamilton,” who four years later, as Governor, was to face the enraged Andrew Jackson with a spirit as resolute as Old Hickory’s. A third was twenty-one-year-old James H. Hammond, in time to edit the nullification paper, the Southern Times. And present at Fort Hill in spirit, as Margaret Coit wrote, “if not in his fat, aging flesh,” was that fascinating old Republican, Thomas Cooper, who had come to South Carolina after his conviction at the hands of Justice Chase for sedition nearly thirty years before.(116)

Calhoun swiftly came to realize that if the hot-blooded agitation of the secessionists were not channeled into a calmer course, a resort to arms was imminent. Hence, as Vice-President, he employed the device Jefferson had employed in espousing the Kentucky Resolution in 1798, and for the same reason: Vice-Presidents, are, or were, to be seen and not heard. In secrecy, Calhoun drafted the South Carolina Exposition and Protest. Though it was not formally adopted by the South Carolina Assembly,(117) it was published under legislative authority. Its impact upon South Carolina, though somewhat delayed by the length of the document and the difficulties of Calhoun’s prose style, ultimately was to have the greatest significance.

In the Exposition(118) Calhoun devoted himself first to the problems of an agricultural South, whose people had become “serfs” to the industrial North. The South would not complain, he said, of a moderate tariff which afforded incidental protection: “We would rejoice to see our manufacturers flourish on any constitutional principle consistent with justice.” But the tariff of 1828 was neither constitutional nor just. It was a device through which a majority in Congress had utilized their powers as “an instrument of aggrandizement.” In this process, they had gravely encroached upon the rights of the States, but—and here the doctrine of nullification in its most drastic form was asserted for the first time—the States had one remedy remaining to them: They could invoke their inherent right “to interpose to protect their reserved powers,” and by interposing, suspend the operation of a law they regarded as unconstitutional pending a decision by all the States in convention assembled.

Whatever may be said of South Carolina, and of the many Southern farmers and small businessmen who approved her Exposition, a lack of forebearance cannot be attributed to them. Calhoun’s striking doctrine of State powers went forth in December of 1828. Nearly four years elapsed before South Carolina, her patience at last exhausted, pursued the remedy Calhoun had outlined.

Meanwhile, a dozen States had engaged in a battle of resolutions over the tariff and the theory of interposition. Georgia had called upon the States to unite in “a policy of self preservation” in a “continued and strenuous exertion to defeat that general pernicious and unconstitutional policy, contemplated and pursued by the advocates of the tariff.” Mississippi, in February of 1829, had agreed that the tariff should be resisted “by all constitutional means.” The same month, Virginia had revived her Doctrine of ’98: “The Constitution [is] a Federal compact between sovereign States, in construing which no common arbiter is known,” thus “each State has the right to construe the compact for itself.” On the opposite side, Pennsylvania, Ohio, Delaware, New Jersey, Connecticut, Vermont, Louisiana (where sugar interests predominated), and most notably, Kentucky, had replied in language almost equally strong.(119) Kentucky’s resolution of January 27,1830, may especially be noted; it summarized the objections most generally voiced against the Calhoun doctrine:

The General Assembly of Kentucky cannot admit the right of a minority, either of the States or of the people, to set up their opinion not only in opposition, but to overrule that of the majority. . . . The consequences of such a principle, if practically enforced, would be alarming in the extreme. . . . If one State had a right to obstruct and defeat the execution of a law of Congress because it deems it unconstitutional, then every State has a similar right. . . .

The Kentucky resolution conceded that, of course, there may be acts of government of such extreme oppression as to justify an appeal to arms—but this was not asserted by South Carolina in protesting the tariff law. On the contrary, it was South Carolina’s position that without going to war or seceding, South Carolina could suspend the operation of the tariff within her jurisdiction. In Kentucky’s view, this could not be sanctioned. Nor was this position in 1830 inconsistent with Kentucky’s more famed Resolutions of 1798 and 1799: In protesting the unconstitutionality of the Alien and Sedition Acts, “it neither interposed nor threatened the adoption of any measures to defeat or obstruct their operation within the jurisdiction of Kentucky.” The Assembly in 1798 had expressed, in very strong language, its disapprobation of the laws and its firm conviction that they were unconstitutional and void.

There it stopped, and that is the limit which no State should pass, until it has formed the deliberate resolution of lighting up the torch of civil war. Every State, as well as every individual, has the incontestable right freely to form and to publish to the world its opinion of any and every act of the Federal government. It may appeal to the reason of the people, enlighten their judgements, alarm their fears, and conciliate their support, to change Federal rules or Federal measures. But neither a State nor an individual can rightfully resist, by force, the execution of a law passed by Congress.(120)

These objections on the part of Kentucky will be considered hereafter. It is best, at this point, simply to hew to the chronology of events. Thus it may be noted that during the years immediately following the Exposition of December, 1828, the spirit of nullification grew rapidly in South Carolina. McDuffie and Hamilton and Hayne were aided by Robert J. Turnbull’s belligerent essays, gathered together in The Crisis, or Essays on the Usurpations of the Federal Government, which gained wide circulation following their publication as the letters of “Brutus” in the Charleston Mercury. Many other prominent Carolinians joined the nullification movement. They were opposed, from the beginning, by a strong Unionist group, but the continued deprivations blamed upon the tariff brought recruits in increasing numbers to Calhoun’s camp.

James Madison, meanwhile, was busily engaged in denying the very theories he had espoused so warmly thirty years before. In a stream of public letters, he insisted that Virginia’s Resolution of 1798 gave no sanction to South Carolina’s doctrine.(121) As a pointed reply, South Carolina’s Legislature, in December, 1830, adopted a resolution quoting verbatim from the first four paragraphs of the Virginia Resolution and the first paragraph of the Kentucky Resolution, in order to make its point that whenever a State has lost all reasonable hope of redress from Federal departments, “it will be its right and duty to interpose, in its sovereign capacity, for the purpose of arresting the progress of the evil occasioned by the said unconstitutional acts.”(122)

In the summer of 1831, President Jackson, whether unwittingly or deliberately, added fuel to the fire. He had been invited to attend a dinner in Charleston on July 4. To this invitation he responded with a letter severely criticizing nullification as leading to “disorganization” of the Union. At its first opportunity, the embittered South Carolina Assembly responded with a strong resolution declaring that if by “disorganization” Jackson meant “disunion,” no constitutional or legal authority imposed any duty on the President to prevent it. “This is a confederacy of sovereign States, and each may withdraw from the confederacy when it chooses; such proceedings would neither be treason nor insurrection nor violation of any portion of the Constitution. It is a right which is inherent in a sovereign State, and has not been delegated by the States of this Union.” Should South Carolina, exercising her deliberate judgment, acting in her sovereign capacity, declare an act of Congress unconstitutional, “that judgment is paramount—and if the Executive, or all the combined departments of the general government endeavor to enforce such enactment, it is by the law of tyrants, the exercise of brute force.”(123)

Less than three weeks after the publication of Jackson’s reply to the dinner invitation, Calhoun brought forth, on July 21, 1831, his justly renowned “Fort Hill Address.” If the student of State and Federal relations, interested in Calhoun’s beliefs, is able to read one of Calhoun’s papers only, he would do well to read this clear and cogent statement. It may be found in Volume Six of Calhoun’s Works, though it is widely available elsewhere.

The following summer, Congress undertook to amend the hated Tariff of Abominations, but its act of July 14, 1832, accomplished no significant changes. To the rebellious Carolinians, their last chance of congressional redress had passed. On the Charleston Battery and up and down Meeting and King streets, the blue cockades of the nullifiers flourished. Calhoun, by this time thoroughly identified, publicly and privately, with the nullificationist cause, added fresh ammunition in a long and clearly reasoned letter to Governor Hamilton.(124)

By the fall of 1832, no influence other than Calhoun’s despised “metaphysics” could have prevented a violent secession by South Carolina. Hamilton, a brigadier general in the militia, was busily engaged in problems of gunpowder and logistics; groups of “volunteers” were ready to make war for the defense of South Carolina’s rights. President Jackson, never one to pass up a fight, ordered General Winfield Scott to Charleston and directed that a special guard be maintained at Fort Sumter.

In this tense situation, the best thing that could have happened was what did happen. Pursuant to a call of the Legislature, a convention of the people of South Carolina met at Columbia on November 19, 1832. The ordinance they adopted on November 24 is the final and most drastic expression of the right of a State to interpose against Federal encroachment. It was not the “State government,” let it be emphasized, that here acted; it was rather a convention of the people, speaking with the voice of ultimate sovereignty, that declared the tariff acts of 1828 and 1832 “are unauthorized by the Constitution of the United States, and violate the true meaning and intent thereof, and are null, void, and no law, nor binding upon this State, its officers, or citizens.” Again, this was not a “resolution”; it was styled an “ordinance.” Here the people, sovereign, made law for their State: All judicial proceedings in affirmance of the tariff acts “shall be hereafter . . . utterly null and void.” After February 1, 1833, all enforcement of the tariff acts was to be suspended in South Carolina. Should any cases in law or equity be decided in South Carolina State courts, involving the authority of the convention’s ordinance or the validity of the tariff acts, no appeal was to be allowed to the Supreme Court of the United States, nor was any copy of a court record to be permitted for that purpose. Should Federal officials retaliate by employing naval forces against South Carolina, or attempting to close her ports, such action would be viewed “as inconsistent with the longer continuance of South Carolina in the Union.” South Carolina then would hold herself absolved from all ties of the Union, and her people would “forthwith proceed to organize a separate government, and to do all other acts and things which sovereign and independent States may of right do.”(125)

On November 27, the South Carolina Assembly reconvened and speedily passed a series of acts to implement the ordinance. And on December 10, Jackson issued his blistering proclamation (largely composed by Edward Livingston) denouncing nullification, denying the sovereignty of States, and pledging force to compel obedience in South Carolina to the laws of Congress.

This proclamation left the South Carolinians unimpressed. On December 20, the Assembly adopted further resolutions, describing Jackson’s opinions as “erroneous and dangerous.” And in a pointed aside, the Assembly noted that Jackson’s statement “is the more extraordinary, in that he had silently, and as it is supposed, with entire approbation, witnessed our sister State of Georgia avow, act upon, and carry into effect, even to the taking of life, principles identical with those now denounced by him in South Carolina.” Insisting upon the right of peaceable secession, in the last resort, the resolution denied Jackson’s power to employ force to keep South Carolina in the Union, and declared that the Legislature “regards with indignation the menaces which are directed against it, and the concentration of a standing army on our borders.” It was resolved that South Carolina “will repel by force, and relying upon the blessings of God, will maintain its liberty at all hazards.”

Now, it should be made clear, in the interests of a fair presentation of these events, that other States—even other States in the South—strongly disapproved the course taken by South Carolina. Massachusetts, Ohio, and Delaware promptly rejected South Carolina’s invitation for a convention to consider Constitutional amendment; Delaware, joined by Maryland and New Jersey, declared that questions of contested power should be settled in the Supreme Court, as a tribunal expressly provided for the settlement of controversies between the United States and the respective States. New York and Pennsylvania, among others, declared expressly against the right of secession. Even belligerent Georgia termed nullification “neither a peaceful, nor a constitutional remedy.” Alabama, though agreeable to a convention, termed it “unsound in theory and dangerous in practice . . . leading in its consequences to anarchy and civil discord.” North Carolina, again denouncing the protective tariff, thought nullification “revolutionary in its character,” and “subversive of the Constitution.” Mississippi regarded the doctrine as “heresy, fatal to the existence of the Union.”

If these replies disheartened South Carolina, it was not evident in the determined preparations she made to enforce her ordinance. Calhoun, distraught, saw his hopes for a peaceful settlement glimmering. Word spread that Jackson, his temper high, had promised to have 100,000 troops in South Carolina in three months’ time. Indeed, Jackson had grimly threatened, in several conversations, to hang Calhoun “as high as Haman.” It was in this taut situation that Calhoun resigned as Vice-President in order to accept appointment to the Senate, succeeding Hayne; and on December 22, 1832, he set out for Washington and a head-on clash with Jackson.

The rest of this story is quickly told. Once Calhoun took his seat in the Senate, quiet negotiations toward a settlement became possible. Under the aegis of Clay, a compromise tariff bill was worked out. It passed the House on February 26, the Senate on March 1; simultaneously, Jackson’s “Bloody Bill,” a Force Act, also was approved.(126) Meanwhile, word was relayed to Charleston for the nullifiers to wait upon Congressional action. When the compromise yielded substantially what South Carolina had demanded,(127) the November ordinance, so far as it related to the tariff acts, was repealed. And within a few years, as it will be noted hereafter, the very States that had denounced South Carolina so strenuously for direct and plain-spoken nullification of Federal acts were busily engaged themselves in effective nullification of the laws and the Constitution in the matter of fugitive slaves.

AT THIS point, it is proposed to pause in this review of State and Federal conflicts, in order to argue the basis, the soundness, and the wisdom of the constitutional doctrines of John Calhoun. In undertaking this task, the author of these notes asks of his readers no more than the open mind which he himself brought to the subject at first encounter some months ago. To one reared in the custom of docile obedience to Federal authority, to the tradition of a strong “national” government, Calhoun’s cold and logical reasoning comes with the shock of an icy plunge.

Because the best exposition of this argument is Calhoun’s own exposition, let us go first to his Fort Hill Address of 1831. “The great and leading principle,” he began, “is that the general government emanated from the people of the several States, forming distinct political communities, and acting in their separate and sovereign capacity, and not from all the people forming one aggregate political community.”

The evidence in support of that proposition already has been marshaled, and seems undeniable: The colonies, under British rule, were separate colonies; with the Revolution, they declared themselves individually “free and independent States.” As separate and distinct States they entered into the Articles of Confederation. As separate and distinct States they bound themselves under the new Constitution in 1787 and 1788. At no time did “we the people,” meaning the people en masse, take any action affecting the creation of the Union; at every juncture, the people acted solely as people-of-States. Had the States abandoned this proud characteristic of individual sovereignty, it is reasonable to believe that their act of divestiture would have been set forth, at some point, in unmistakable terms. No such evidence can be adduced. On the contrary, the plain language of the Constitution shows repeatedly that the States formed a “Union.” Under this compact, their sovereignty was not surrendered, and only certain of their sovereign powers were granted or delegated. The States were the principals in this agreement; they created a common Federal government whose powers were to be derived solely from the Constitution—and the power of amending the Constitution they reserved solely to themselves.

As in the world of commerce, so among the States: Doubtful assertions of authority by the Federal government, inconsequential invasions of the rights of contracting States, unimportant differences of opinion—these may be dismissed with mild objections, or may be tacitly accepted. Love of the Union lies deeply engrained in the people; their affections are long suffering. But what is to be done, in the last resort, when remonstrance fails and protests go unheeded in matters of the most vital nature? “In the case of a deliberate, palpable and dangerous exercise of power not delegated,” said the Virginia Resolution, and said Calhoun, the States in the last resort have a right “to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.” This right of interposition, said Calhoun,

I conceive to be the fundamental principle of our system, resting on facts historically as certain as our revolution itself, and deductions as simple and demonstrative as that of any political or moral truth whatever; and I firmly believe that on its recognition depend the stability and safety of our political institutions.

Let it be inquired, Calhoun asked, what is the object of a Constitution? Plainly, he replied, the object of a Constitution is to restrain the government, as that of laws is to restrain individuals.(128) And the necessity for a restraint upon the abuses and excesses to which all governments are inclined, arises largely from the fact that the governed people have dissimilar interests and concerns. Were all the people alike, and all interests of a community identical, no such restraints would be required; a simple majority division would justly decide every question submitted to it. But this identity of interest does not exist among the several States who jointly form the American Union. From the very inception of the Republic, the different States zealously have cherished differing institutions: To one, foreign trade may be vital; to another, domestic manufactures; to a third, agriculture; to a fourth, water power and irrigation; to a fifth, the operation of public schools and parks. It is only to a limited extent that these most vital concerns may be subordinated to the “national good.” At some point, Calhoun argued, compromise must end and oppression begin. And it is “to guard against the unequal action of the laws, when applied to dissimilar and opposing interests, in fact, what mainly renders a constitution indispensable.”

to give to each co-estate the right to judge of its powers, with a negative or veto on the acts of the others, in order to protect against encroachments the interests it particularly represents: a principle which all of our Constitutions recognize in the distribution of power among their respective departments, as essential to maintain the independence of each, but which, to all who will duly reflect on the subject, must appear far more essential, for the same object, in that great and fundamental distribution of powers between the General and State governments. So essential is the principle, that to withhold the right from either, where the sovereign power is divided, is, in fact, to annul the division itself, and to consolidate in the one left in the exclusive possession of the right all powers of government; for it is not possible to distinguish, practically, between a government having all power, and one having the right to take what powers it pleases. [Emphasis is in the original.]

We must examine, then, the various remedies that may be suggested. Our supposition is that Congress has enacted a bill, or the President has issued an executive order, or the Supreme Court has entered a decree clearly not authorized by the Constitution, the effect of which, if consented to, would be to endanger or destroy a plainly reserved power of a State. The question first must be asked, is not every such unconstitutional act absolutely void, and void ab initio? Obviously it is, and on the highest authority of our law. Are the States, then, bound to submit to laws or decrees which are unconstitutional and void? No such obligation can be inferred. On the contrary, it would appear that those States which refuse to submit to them are right, and that other States, undertaking to compel submission and to coerce obedience to usurped power, are guilty of oppression of the worst sort.

First, the powers of the Court are judicial, not political, and under the Constitution extend primarily to cases in law and equity. The Court’s jurisdiction over “controversies to which the United States shall be a party” never was regarded by the framers of the Constitution as authority in the Court to decide questions of political contest. It was not until 1890, more than a century after the ratification of the Constitution, that the Supreme Court claimed jurisdiction in any suit brought by the United States against a State—in this case, a suit against North Carolina to recover upon bonds issued by that State.(129) As recently as 1935, the Court refused to accept jurisdiction in a proceeding sought by the Federal government against West Virginia to determine the navigability of the New and Kanawha rivers, on the ground that its jurisdiction did not extend to the adjudication of differences of opinion between officials of the two governments.(130)

Not until the Tidelands Oil cases of 1947 and 1950, in a drastic overreaching of its powers, did the Court undertake to snatch the very authority that properly had been denied it.(131) The Tidelands question did not involve any petty question of bonds or any minor controversy over a boundary(132) or any inconsequential issue of title to particular tracts.(133) It involved a grave contest of power between the coastal States and the Federal government on an issue that, in the view of many leaders of those States, seriously affected their most vital interests.

Secondly, it is regrettably clear, even as Madison foresaw in his report of 1799, “that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department may also exercise or sanction dangerous powers, beyond the grant of the Constitution.” It is not to be supposed, in this democratic republic, that our Congressmen are mortal, but our judges divine. To regard the Court as the sole expositor of the Constitution and to vest in it the unchecked power not merely to interpret but substantively to amend the Constitution, is to relinquish unto a majority of the judges the sovereign power reserved to not fewer than three-fourths of the States. On this theory, the Court, by advancing specious reasons or no reasons at all, could in one bold move blot out the veritable existence of half-a-dozen States that displeased the judges; and the States would be powerless to resist effectively.

Thirdly, it is not to be forgotten that the Supreme Court, by the very nature of the instrument creating it, is a portion of the Federal government itself. It is the judicial branch of the trinity whose other branches are the Presidency and the Congress. Just as the President is the executive representative of this general government, and the Congress its legislative representative, so is the Court its judicial representative. The Justices are confirmed by a majority of the Senators, which is to say, by a majority of the States; they can be removed, if at all, only by a majority of the States. And in Calhoun’s phrase: “To confide the power to the judiciary to determine finally and conclusively what powers are delegated and what reserved, would be, in reality, to confide it to the majority, whose agents they are, and by whom they can be controlled in various ways; and, of course, to subject . . . the reserved powers of the States, with all the local and peculiar interests they were intended to protect, to the will of the very majority against which the protection was intended.”

Littleton Waller Tazewell, a great Virginia jurist, made the same point in a series of essays in which he demolished Jackson’s proclamation of December, 1832: “Can the human mind conceive a more audacious proposition,” he asked, “than that which suggests that in a controversy between the parties to a covenant [under which] an agent is created, where the matter in dispute . . . regards the authority exerted by the agent, the decision of this controversy must be referred to the agent himself?”(134) What would have been the result, in the matter of the Sedition Act, if it may be supposed, first, that the act carried no expiration date, and secondly, that the Federalists had retained control of the House and refused to consent to its repeal? The Federalist judges—Chase, Paterson, Washington—already had held this wickedly unconstitutional law to be valid. An appeal by the States, on behalf of their gagged and persecuted people, surely would have been vain had it been addressed to the Court: The judges would have been asked to decide if the judges themselves had done right.

Before completing this phase of the discussion, a hostile witness may be called—the widely regarded Edward Livingston of Louisiana, Secretary of State under Jackson, a member of the Senate during the Webster-Hayne debates, principal author of Jackson’s proclamation. “I think,” he said, “that by the institution of this government, the States have unequivocally surrendered every constitutional right of impeding or resisting the execution of any decree or judgment of the Supreme Court, in any case of law or equity, between persons, or on matters, of whom, or on which, that court has jurisdiction, even if such decree or judgment should, in the opinion of the States, be unconstitutional.” But then Livingston, who strongly opposed Calhoun’s theory of nullification, went on to concede that

in cases in which a law of the United States may infringe the constitutional right of a State, but which in its operation cannot be brought before the Supreme Court, under the terms of the jurisdiction expressly given to it over particular persons or matters, that court is not created the umpire between a State that may deem itself aggrieved and the General Government. [Emphasis supplied.](135)

What is to be deduced from Livingston’s fuzzy thinking? First, that in cases, the Court is the supreme and final umpire, though the effect of its judgment upon the parties may be to deprive the State of what the State regards as its constitutionally reserved power; but secondly, if no case can be devised, the Court is not the umpire at all. But whence comes this limitation of the court’s jurisdiction to cases? Why, as we have seen, from Article III of the Constitution. It is, then, the Constitution that controls the Court; it is, as it ever must be, the Constitution that is the supreme law of the land. But if the Constitution is over the Court, who or what finally is over the Constitution? It can only be the States, who under Article V alone have the power to amend or rewrite it. How, then, may it be urged that the States “unequivocally surrendered” the control of their most fundamental rights, in the last resort, to a Court they themselves created? So trusting a confidence in fallible man is unknown in human affairs; it cannot be imputed to the great men who as delegates of States drafted the Constitution.

Let us return, now, to a further inquiry into the alternative courses said to be available to a State, or several States, whose most vital institutions have been imperiled by an act or a decree regarded as unconstitutional. What we are seeking, it must be emphasized, is a peaceable remedy within the Union, and within the framework of the Constitution.

Livingston, in this same speech, suggested that an aggrieved State may resist in this way: (1) By remonstrating to Congress against the act; (2) by an address to the people, in their elective functions, to change or instruct their Representatives; (3) by a similar address to the other States, in which they will have a right to declare that they consider the act as unconstitutional, and therefore void; and (4) by proposing amendments to the Constitution, in the manner pointed out by that instrument.

In the phrase, “to arrest the progress of the evil” lies the whole end and purpose of State interposition. The evil, as Abel Parker Upshur observed long ago, “is the exercise of an usurped power.” The aim is to suspend this usurpation alone, within the limits of the objecting State, and thus to force a decision by the arbitrament of the ultimate umpire—the sovereign people themselves, acting in their respective States. In the grave and extraordinary crises for which outright nullification may be invoked, said Calhoun, “the States themselves may be appealed to, three-fourths of which, in fact, form a power, whose decrees are the Constitution itself, and whose voice can silence all discontent.” And he added:

They are coordinate departments of one simple and integral whole. But you may ask, If the two departments should claim each the same subject of power, where is the umpire to decide between them? In cases of little urgency or importance, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best.(136)

So, too, with Calhoun: “The spirit of forbearance, as well as the nature of the right [of nullification] itself, forbids a recourse to it, except in cases of dangerous infractions of the Constitution; and then only in the last resort, when all reasonable hope of relief from the ordinary action of the government has failed; when, if the right to interpose did not exist, the alternative would be submission and oppression on one side, or resistance by force on the other.” So, also, it will be recalled that Madison emphasized, in the Report of 1799, that an infraction of the Constitution must be “deliberate, palpable and dangerous.” Interposition, he said, is not to be invoked “either in a hasty manner or on doubtful and inferior occasions.” It can be called for by the States only on those occasions that “deeply and essentially affect the vital principles of their political system.”

Although governments are primarily founded in distrust, yet there is, of necessity, some degree of confidence in all of them. The wisest statesman can do no more than repose that confidence in the safest hands, while at the same time, he surrounds it with all practicable safeguards against abuse. If the States may abuse their reserved rights in the manner contemplated by the President, the Federal government, on the other hand, may abuse its delegated rights. There is danger from both sides, and as we are compelled to confide in the one or the other, we have only to inquire, which is most worthy of our confidence.

Besides, according to the doctrine for which I am contending, this evil would be temporary only; it must cease in some way or other, as soon as the other States act upon the subject. I acknowledge, however, that it is at best an evil, but it is an evil inseparable from our system, and one which cannot be avoided except by submitting to a greater evil.(137)

May it be earnestly submitted, to those friends of constitutional government who are concerned at the aggrandizement of the Federal government, that careful consideration be given to Calhoun’s reasoned doctrines? They rest upon the structure of the Union itself as a Union of co-equal States, in which each State rightfully should be responsible for the management of its most intimate domestic concerns; yet his doctrines do not deny to the Federal government one iota of the power and authority delegated to it by the Constitution.

Were the powerful weapon of State interposition carried by the States as a well-sheathed sword, its very existence would exert upon Federal departments a restraining influence of incalculable value. The judge, contemplating some bold engraftment on the fundamental law, could be expected to ask himself: Will this be acceptable to three-fourths of the States should an infraction be charged? The Congress, proposing to seize from a few States the control of their own natural resources, might pause in its ambitious course if there were reason to believe that an appeal would be taken, as from a ruling of the chair, to the source of ultimate sovereignty. Yet the States themselves, for their part, it may be imagined, seldom would risk an immediate and decisive rebuke by their brethren for interposing on light or unwarranted grounds. Year after year, it would be supposed, the States would accept the interpretations placed upon their Constitution by the Court, and would acquiesce without objection in the acts of Congress; indeed, for the past half-century, they have done so with few exceptions.

In commencing this section, it ought not to be necessary to make one disavowal:(138) The author of these notes utterly disclaims any affection or admiration for the detestable institution of human slavery that cursed the South for a century and a half. It was an abominable custom, indefensible in any light; no one could condemn it more severely than this citizen of Virginia. As many objective students of Southern history have fairly noted, the citizens of an older Virginia condemned it also. Governor Randolph, addressing the Virginia Convention of 1788, grimly described Virginia and North Carolina as “both oppressed with debts and slaves.”(139) George Mason, in addressing the Virginia convention, referred to the “nefarious” and “detestable” and “disgraceful” slave trade,(140) but Mason foresaw, as many others did not, the “Northern and Eastern States meddling with our whole property of that kind.”(141)

For a correct understanding of Mason’s apprehension, it is necessary to shift some mental gears violently, in order to comprehend an economy, in our own country, revolving entirely around slave labor. We must recall that there was a time, nauseously distasteful as the thought may be, when many of the finest and most cultured leaders of our Republic owned slaves and rather helplessly defended slavery. They trafficked in human beings, bought and sold them like cattle. There is no condoning it now.

But for the purposes of this essay, it must also be comprehended that the Constitution of the United States specifically sanctioned slavery. Nailed into our fundamental law were three provisions that in 1787 were essential to the adoption of any Constitution whatever: It was provided in Article I that representation in the House would be based upon “the whole Number of free Persons . . . and . . . three fifths of all other Persons.” It was further provided that “the Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year 1808.” And it was provided, finally, in Article IV, that

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

With that understanding, it may be noted that among the earlier acts of Congress was the Fugitive Slave Act of February 12, 1793, by which the foregoing constitutional provisions were implemented with legislation clearly “necessary and proper” to carry them out.(142) From the very beginning—even from the Northwest Ordinance in the prior Congress of 1787, abolition of the slave trade was widely urged. Prior to 1810, half-a-dozen States—among them North Carolina, Maryland, and Tennessee—proposed constitutional amendments toward that end. An act providing for an end to this traffic, with the expiration of the constitutional limitation in 1808, received overwhelming support. Yet even among those who condemned slavery most severely, the ugly practice was recognized unhappily as an inescapable part of the economy of the affected States.

Various schemes were devised to ameliorate the condition. Most prominent among these was the colonization plan, which early had the support of Jefferson and late the support of Lincoln. As far back as 1802, the General Assembly of Virginia could be found urging that land be acquired, in Africa or South America, for colonization of free Negroes.(143) In 1816 and 1817, States as far apart as Georgia and Vermont endorsed the proposal. Indeed, the idea came and went over a period of nearly forty years, as Pennsylvania, Delaware, Illinois, Indiana, Connecticut, and Massachusetts one by one approved it.

Yet the colonization plan, if it were desirable in theory, proved unacceptable in practice. Nothing came of it, and in time the sponsors fell out. Meanwhile, other events came along that served to drive a terrible wedge between the States. The bitter fight of 1819-20 over the admission of Missouri saw at least nine States (Vermont, New Hampshire, Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Ohio and Indiana), strongly interceding against any terms of admission by which slavery might be extended.(144) Their opposition, as New Jersey and Vermont freely conceded, was not on moral grounds alone: Every 1,000 voteless slaves in Missouri would be counted as 600 free citizens in providing representation in the House of Representatives. The question was political as well as moral. But it was a constitutional question also, as Virginia, among others, repeatedly pointed out: Every new State, entering the Union, necessarily had to be admitted with exactly the same equal rights and privileges that obtained to every other State. It could not be otherwise.

The wrath of the North, and the resentment of the South, were further aroused in this period by the almost incredible outpourings of the abolitionist press. William Lloyd Garrison’s Liberator began publication in Boston January 1, 1831, but it was merely the best known of a hundred publications that began to flood the country. “I do not wish to think, or speak, or write with moderation,” said Garrison,(145) and he set the tone for the others. To the Southern States, these violently inflammatory newspapers and pamphlets were a serious and dangerous aggravation.(146) The white residents, in many areas overwhelmingly outnumbered by their subject slaves, justifiably feared insubordination or insurrection; they dreaded the “torch of the incendiary, and the dagger of the midnight assassin.”(147) And they were heartily outraged by “officious and impertinent intermeddling with our domestic concerns.”(148) After all, as South Carolina grimly pointed out, “The evils of slavery have been visited upon us by the cupidity of those who are now the champions of universal emancipation.”(149)

In a spirit of desperate self-preservation, many of the Southern States embarked upon a program of retaliation. Following a potentially disastrous Negro uprising in Charleston in May of 1822, South Carolina adopted a “Negro Seaman’s Act,” the effect of which was to deny free Negroes, arriving as crew members aboard sailing vessels, permission to land at South Carolina ports. Virginia earlier had adopted a somewhat similar law,(150) and in time other seaboard States were to follow. New England shipowners angrily protested the law, and in the fall of 1833 arranged a test case of its provisions. Mr. Justice Johnson promptly declared the South Carolina statute unconstitutional. He was not interested in South Carolina’s anxieties and fears: “The plea of necessity is urged,” he said, “and of the existence of that necessity, we are told, the State alone is to judge. Where is this to land us? Is it not asserting the right in each State to throw off the Federal Constitution at its will and pleasure? If it can be done as to any particular article, it may be done as to all, and, like the old Confederation, the Union becomes a mere rope of sand.”(151) Yet South Carolina, in the face of this decision, continued to enforce her law.(152) Indeed, two years after Johnson’s opinion, South Carolina added some fresh teeth to it.(153) Alabama and Florida, and later Louisiana and Georgia, in 1842, paralleled the statute. And the offended New Englanders, in a gesture not wholly appreciated, dispatched missions southward to arrange fresh test cases. Mr. Samuel Hoar, when he explained his purpose in South Carolina, was abruptly expelled from the State by legislative resolution.(154) A mission to Louisiana met the same inhospitable treatment.

But meanwhile, Northern States were far more industrious in seeking to nullify both Constitution and courts. Very early in the period, they began to adopt what were known as “Personal Liberty Laws”—State statutes designed shrewdly and deliberately to nullify the Federal Fugitive Slave Act. That this was their intention, few Northerners denied; that the enactments presented an outright defiance of law was generally conceded. Even the great Webster, no friend of slavery or the South, once commented of Southern outcries against the personal liberty laws, “The South, in my judgment, is right, and the North is wrong.”(155) The laws took a dozen ingenious forms. The Southern slave-owner, who came North seeking his escaped servant or farmhand, was susceptible of arrest himself on a trumped up charge of “kidnapping.” Should the slave-owner actually capture his fugitive, it was necessary for him to prove ownership by the most elaborate evidence— presented before a jury of hostile abolitionists. State officials were prohibited under pain of heavy punishment from cooperating in any way in enforcement of the Federal act. It was made a serious misdemeanor for any person to assist in the recapture of a fugitive slave. In Vermont, all fugitives were declared automatically free men; any person who attempted to detain such a fugitive thereafter made himself liable, on conviction, to a prison term of five to twenty years or a fine of up to $10,000.(156)

All told, fourteen respected and honored Northern States engaged in this prolonged, and generally successful interposition of their sovereign powers. Let the roll be called: Connecticut, Iowa, Maine, Massachusetts, Michigan, Pennsylvania, New York, Ohio, New Hampshire, Rhode Island, Vermont, Illinois, Indiana, Wisconsin. Theirs was a planned and deliberate program of nullification, pursued with relentless vigor, in defiance of the Constitution, over a period of nearly forty years. Each of them enacted laws willfully intended to veto the Act of Congress of 1793, and to render nugatory any effort to enforce it. As rapidly as their acts were held unconstitutional,(157) they enacted new evasions, or simply ignored the court decrees.

This steadfast resistance to the Constitution, as might be surmised, led to some angry conflicts between the States. Virginia for example, tangled bitterly with New York, when New York’s Governor Seward refused to surrender three men charged with stealing slaves. Repeated requests for their extradition, phrased in the most respectful terms, went unanswered, and finally Virginia’s Governor Gilmer lost his temper. Seward’s refusal, he declared, was “monstrous.”(158) It was “a palpable and dangerous violation of the Constitution and laws of the United States . . . [which] cannot be acquiesced in.”(159)

New York, unimpressed, added injury to insult by enacting in 1840 a new and more ingenious Personal Liberty Law than any the State had adopted in the past.(160) To this Virginia retaliated, in 1841, with “An act to prevent citizens of New York from carrying slaves out of the Commonwealth.”(161) And Gilmer, still aroused, also refused to surrender a forger to New York until Seward chose to return the slave-stealers. Notably, Virginia’s General Assembly regarded this action on Gilmer’s part as dishonorable, censured him for it, and accepted his resignation from office. Virginia’s act of 1841, which required an inspection of every New York vessel (at the shipowner’s expense), to make certain no slaves were being carried away, was repealed by Virginia’s Assembly in 1845.(162)

An even more dramatic conflict arose between Georgia and Maine, involving a twenty-two-year-old slave by the name of Atticus who turned up, in May of 1837, aboard the schooner Susan, bound for Maine. According to the ship’s master, Daniel Philbrook of Camden, and the mate, Edward Kelleran of Cushing, the slave was a stowaway. According to the aggrieved owners, James and Henry Sagurs of Chatham County, Georgia, the two seamen had kidnapped him. In any event, the Brothers Sagur obtained a boat of their own, and began a chase at sea. The Susan put on canvas and outran them back to Maine.

When finally the well-winded Georgians reached Maine and obtained a warrant for Atticus’ recovery, the Negro had disappeared. Not until they offered a reward was the slave found, concealed in a barn in Thomaston. Attempting to take him into custody, the Sagurs encountered a crowd of abolitionists; they were “pelted by the populace, and . . . with difficulty escaped from the fury of the mob.” However, they did manage to get Atticus back to Savannah.(163)

The Sagurs’ next step was to swear out a warrant, in Georgia, charging Philbrook and Kelleran with kidnapping. In June of 1837, Georgia’s Governor William Schley formally requested their extradition, but Maine’s Governor Robert P. Dunlop, a long-jawed fellow with a deceptively placid look about him, declined on a number of technical and legalistic grounds. In the fall, Georgia met these objections, but Dunlop still declined to return the two men for trial. In December, Georgia’s Legislature wrathfully adopted a resolution denouncing Dunlop for failing to perform “the sacred duties which are imposed upon him” by the Constitution, and especially for resisting Georgia’s constitutional request “at a time when the minds of the people of the South are justly excited, and their feelings most wantonly outraged, by the machinations of certain fanatics in the North.”

In Maine, the portly, white-haired Edward Kent succeeded Dunlop as Governor, but proved equally deaf to Georgia’s protestations. Late in 1838, the Georgia Legislature met again, and a special committee pondered what might be done about the situation. One recommendation was that Georgia close all her ports to vessels from Maine, but on mature reflection, it was agreed that under the Constitution this was impossible. A committee member offered a second proposal: To seize upon visitors from Maine and hold them hostage until the felons were returned. But while that might not be unconstitutional, “it would be unjust.” A third possibility, solemnly, if briefly considered, was for Georgia to declare war on Maine—but Heaven forfend! “Long, long may it be before the States of this Union shall be involved in civil conflict!” What, then, was to be done? The frustrated committee, “although strongly disposed to recommend the passage of a law imposing quarantine upon all vessels coming into our waters from Maine,” ultimately settled merely for further, and stronger, resolutions directed toward Maine. If these failed, a State convention should be called “to devise the course for her future policy.”

These claims and counter-claims led to a series of border incidents, climaxed in the summer of 1837 when a congressional agent, sent to the town to take a census in order to distribute the famed Federal surplus of 1836, was summarily arrested by a British constable and clapped in jail. Governor Dunlop, declaring that Maine’s soil had been invaded by a foreign power, prepared for the State to go to war against England on its own—as the State, lest it be forgotten, constitutionally had (and still would have) a right to do.(164) The British backed down before Dunlop’s bellicose preparations, released the agent, and arranged for an arbitration. Unhappily, the arbitrator, William, King of the Netherlands, accepted neither the boundary line urged by the British, nor the line contended for by Maine: He drew a line of his own, which satisfied no one. Maine was further aggrieved when Van Buren’s pussyfooting administration proposed to give Maine 1,000,000 acres of land, to be taken from what now is Michigan, in exchange for the territory Maine would lose under the arbitration award. Maine declined.

Soon afterwards, as border incidents became more aggravated and Van Buren seemed disposed to do nothing more, Governor Kent brought matters to a head. The State’s sovereignty had been outraged; her appeals to Washington had proved fruitless. Now Kent was prepared to recommend that Maine “throw herself entirely upon her own resources, and maintain, unaided and alone, her just rights, in the determined spirit of free men.” The indignant Legislature backed him by appropriating $800,000, and Kent promptly ordered 10,000 militiamen called out. Within a week they were on their way to Aroostook County, under the command of General George W. Bachelder. At this, Congress hastily came to life, added its own appropriation of $10,000,000 and the President sent General Winfield Scott and his staff packing off to Augusta. Scott fortunately proved to be an able peacemaker; both sides withdrew their troops and released their prisoners, and the bloodless Aroostook War finally was settled in 1842 by the Webster-Ashburton Treaty. In time, of course, Maine’s dispute with Georgia also was settled, but hostility against Maine did not subside in Savannah for generations.(165)

Much resentment also arose over the hotly contested question of annexing Texas—not only as a slave State, but as a previously independent Republic. Connecticut branded the proposal “an alarming encroachment upon the rights of free men.”(166) Maryland termed it “a flagrant violation of the Constitution.”(167) Ohio, pointing out that the Constitution contained no provision “for incorporating foreign nations,” protested hotly.(168) Vermont demanded that Texas be barred unless every State in the Union consented to the annexation, and declared that for her own part, she would never assent to so “flagrant a violation of the national compact.”(169) Michigan, Illinois, and Maine, also interposed objections in 1845, but perhaps the most violent opposition to the admission of Texas came from Massachusetts: “Under no circumstances whatever can the people of Massachusetts regard the proposition to admit Texas into the Union in any other light than as dangerous to its continuance in peace, prosperity, and in the enjoyment of those blessings which it is the object of free government to secure.”(170) And significantly, Massachusetts subsequently vowed that “such an act of admission would have no binding force whatever on the people of Massachusetts.”(171) (Emphasis supplied.)

Texas was admitted, of course, in December of 1845, but the broader controversy roared on. Throughout the 1840’s, Northern States continued to encourage the escape of Negro slaves, and to harass the slave-owners in every attempt to recover them. In Ohio, Indiana, and Illinois, armed mobs forcibly took slaves from their Southern masters, evidently with the tacit approval of local law enforcement officers. Occasionally these measures encountered a frown from the Supreme Court; in Pennsylvania, one Prigg, attempting to return a Negro woman, Margaret Morgan, to her owner in Maryland, was indicted for violation of Pennsylvania’s personal liberty law, but on Prigg’s appeal to the Supreme Court Justice Story resoundingly held the State law unconstitutional.(172)

The only result, however, was that Pennsylvania in 1847 passed a new Personal Liberty Law, as ingenious as the one before. Massachusetts, fourteen months after Story’s decision, contemptuously adopted a law providing that “No judge of any court of record in this Commonwealth . . . shall take cognizance or grant a certificate in cases that may arise under the third section” of the Fugitive Slave Law of 1793.(173) Sheriffs and constables were prohibited by the Massachusetts Legislature from detaining fugitive slaves, under penalty of a fine of up to $1,000. Rhode Island, Connecticut, Vermont, and Michigan followed this example. It was as if Story and the Court had never spoken.

There was little enough the protesting Southern States could do about it. In one outburst of annoyance, in 1855, the Arkansas Legislature proposed, in effect, to sever diplomatic relations with Ohio: It was proposed that “all social and commercial” intercourse be halted. Kentucky also tangled bitterly with Ohio. The Constitution explicitly provided, said Kentucky, that “a person charged in any State with treason, felony, or other crime,” i.e:, a slave charged with the felonious crime of escaping, “shall on demand of the executive authority of the State from which he fled, be delivered up.” The Constitution also provided explicitly that no fugitive slave, escaping into another State, “shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up.” Yet when Governor Dennison of Ohio adamantly refused to obey this mandate, the aged Chief Justice Taney, speaking for the Court, was compelled to admit that neither the Constitution nor the fugitive slave laws provided “any means to compel the execution of this duty.” And the Court thought it clear

that the Federal government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it.(174)

The case that provoked the greatest uproar, of course, was the Dred Scott case. It arose in this fashion: Scott was born in Virginia, the son of slave parents, and taken by his master to Missouri about 1827. In 1835, Scott was sold to Dr. John Emerson, an army surgeon, who took him the following year to Rock Island, in Illinois, and a year or so later to Fort Snelling, in what is now Minnesota. In 1838 Dr. Emerson returned to St. Louis, bringing with him Scott, Scott’s wife (a slave woman, Harriet, whom he had married at Fort Snelling), and the slave couple’s daughter Eliza, who had been born aboard the steamboat en route back to Jefferson Barracks.

Within the next few years, Dr. Emerson died, willing his slaves to his wife. Then, in July, 1847, Scott brought suit in the Missouri State courts against Mrs. Emerson, seeking his freedom. His contention was that having been taken from slave territory into free territory, he had gained the status of a free Negro and could not thereafter be returned to slavery. One jury trial resulted in a verdict against him, but on retrial he was successful. The Emerson estate appealed, and the Missouri Supreme Court reversed the trial court and declared Scott still a slave.

At some point in this period, Mrs. Emerson remarried. Her new husband was Dr. C. C. Chaffee, a Republican abolitionist from Massachusetts, who represented his State in Congress. In one sense, his wife’s slave property might have been embarrassing to him; but in a more useful sense, the Negroes offered the opportunity for a cause célèbre. Thus, a dummy sale was arranged, by which the Scott slaves (there was another daughter by this time, Lizzie, born in Missouri) were conveyed to Mrs. Emerson-Chaffee’s brother, John F. A. Sandford (or Sanford) of New York.(175) And in 1853, a fresh proceeding was filed in the Scotts’ behalf, this time in the Federal Circuit Court at St. Louis. A jury found against Scott, and the case went up to the Supreme Court of the United States.

On March 6, 1857, Chief Justice Taney handed down the Court’s 7-2 decision. The Court first tackled the jurisdictional question. Federal courts had authority to hear suits brought by “citizens of different States.” Was Scott a “citizen” within the meaning of the Constitution? The Court’s ruling—and its legal correctness has not been effectively challenged—was that Scott was not a citizen. It is impossible to quarrel with this finding: Under the Constitution of the United States, and under the laws and constitutions of a dozen other States both North and South, Negroes at that time were not, politically, persons at all; they were property. Scott himself, born in Virginia of slave parents, had no right to sue in a Federal court.

Having decided that question, the Court might have stopped, routinely affirmed the Circuit Court, and dismissed the case. But in one of the greatest judicial blunders in the Court’s history, the judges pushed on to other hotly controversial questions. Thus they examined the plaintiff’s claim to freedom by reason of Scott’s travels with Dr. Emerson in 1837 and 1838; this led them to a consideration of the power in Congress to prohibit slavery in territories. Finding that no such power was vested in Congress by the Constitution, the Court gratuitously held the Missouri Compromise of 1820 (which meanwhile had been repealed by the Kansas-Nebraska Act of 1854) to have been unconstitutional.

Some able students of the Dred Scott case have argued persuasively that it was, in fact, necessary for Taney and his associates to consider these questions—not as to Scott, but as to the child, Eliza. She had been born on the steamboat Gypsie, in the Mississippi River north of Missouri. The law of Illinois extended to the middle of the channel; the law of the territory held sway on the other. Which applied? Or did it matter?(176) Yet the almost unwavering tradition of the Court is to avoid large constitutional questions when they are not absolutely essential to a decision, and the weight of criticism holds that the Court needlessly expanded its opinion. In the judgment of Edward S. Corwin, the decision was a grave “abuse of trust” on the Court’s part.(177) Charles Warren, perhaps the ablest Court historian this country has produced, agrees that a serious “loss of confidence” in the Court was caused by the decision.(178)

Overnight, the eighty-year-old Taney and his brothers encountered an outpouring of abuse and vilification unmatched by anything voiced in any Southern State in our more effete times.(179) Nor was this hurricane of protest confined to newspaper columns or to the chambers of Congress. The purpose of this essay is to treat the formal and official interposition of States against what they have regarded as Federal usurpation. Thus attention may be directed to the action of respectable and law-abiding Vermont: Its Legislature resolved, in November of 1857, that the Court’s opinions “upon questions not contained in the record in the Dred Scott Case, are extra judicial and political, possessing no color of authority or binding force, and that such views and opinions are wholly repudiated by the people of Vermont.” And to buttress this assertion, Vermont declared anew, the following October, that the doctrines laid down by the Court “are a dangerous usurpation of power, and have no binding authority upon Vermont, or the people of the United States.”(180)

We may look, also, to the respectable State of Maine. One month after the decision came down, the Legislature of Maine solemnly declared the Court’s opinion “extra-judicial,” and “not binding, in law or in conscience, upon the government or citizens of the United States.” The right of each State to determine the political rights of her citizens “is clear and indisputable, and is to be exercised without question by any other State.”(181)

So, too, in Massachusetts. Perhaps her citizens of today will find interest in this declaration by their General Court of 1858:

Resolved, that while the people of Massachusetts recognize the rightful judicial authority of the Supreme Court of the United States, in the determination of all questions properly coming before it, they will never consent that their rights shall be impaired, or their liberties invaded, by reason of any usurpations of political power by said tribunal. . . .

Resolved, that no part of the decision of the Supreme Court of the United States, in the case of Scott vs. Sandford, is binding, which was not necessary to the determination of that case.(182)

Many other examples might be cited. Ohio, on April 17, 1857, denounced the Court’s decision as a “palpable and unwarranted violation” of the Constitution. New York declared the opinion “has impaired the confidence and respect of the people of this State” in the Supreme Court. All told, twenty-two States interposed against the Court, not only with resolutions declaring the opinion void, but with fresh laws effectively to make it so.

For a final note on Northern nullification, we may turn to Wisconsin, and to a night in March of 1854. A fugitive slave, one Joshua Glover, had been taken into custody at Racine by a United States marshal, Ableman, for violation of the Fugitive Slave Act of 1850. A mob of citizens gathered outside the jail where he was confined. Then an intensely anti-slavery editor, Sherman M. Booth of the Wisconsin Free Democrat, took leadership of the crowd. In one angry wave, they stormed the jail, and released the slave.

Booth was arrested on March 11, and charged in Federal District Court with violation of Federal law. But he at once applied to the Wisconsin State Supreme Court for a writ of habeas corpus, and Judge A. D. Smith of that court promptly ordered him released. The Fugitive Slave Act, said the full court in affirming his action, was unconstitutional and void.(183)

The persistent Marshal Ableman again arrested Booth, and in January, 1855, succeeded in having him tried and convicted in the Federal court. He was sentenced to one month in prison and fined $1,000; but again, the Wisconsin Supreme Court ordered him discharged on a writ of habeas corpus. This time the United States Supreme Court intervened: Chief Justice Taney issued a writ directing the State Supreme Court to send up a record of the case. The Wisconsin court flatly disregarded the order.

It was not until March of 1857, the month of the Dred Scott decision, that the United States Attorney was able to procure a clerk’s copy of the record in the Booth case; and it was not until December, 1858, nearly four years after the storming of the jail at Racine, that the Supreme Court overruled the Wisconsin State court and ordered Booth returned to Federal custody.(184) But once more, the Wisconsin court refused to comply with the Supreme Court’s decree. The State Legislature warmly supported the court’s resistance, and to make this plain, passed a new and more defiant Personal Liberty Law. It also, in March of 1859, more than half a century after Jefferson and Madison had brought forth the Kentucky and Virginia Resolutions, adopted a resolution that vigorously approved the old Doctrine of ’98. The Supreme Court’s action in the Booth case, said the Wisconsin Legislature was “an arbitrary act of power, unauthorized by the Constitution . . . without authority, void, and of no force.” [Emphasis supplied.] And we may especially note the paragraphs that followed. Gentlemen, this is Wisconsin speaking, as recently as 1859:

Resolved, That the government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Resolved, that the principle and construction contended for by the party which now rules in the councils of the nation, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers; that the several States which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infractions; and that a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.(185)

Now, it is not the intention of the author of these few notes to erect a large sign, saying “moral,” at the end of every section. This is no fable for children, of goose and gander. It is perhaps sufficient to say, by way of summary, that over a period of nearly forty years, in issues relating to the slavery question, States both South and North effectively nullified the Federal Constitution, and acts of Congress, and the decrees of the Supreme Court. In the South, as in South Carolina and Florida, this interposition took the form of State laws prohibiting the ingress of free Negro citizens, State laws preventing the delivery of United States mail termed “incendiary,” and State laws (as in Georgia and Virginia) hampering seagoing trade with other States.

Far more serious, because it was more systematically and vigorously pursued, was the interposition of Northern States through their Personal Liberty Laws. In absolute defiance of both Court and Constitution, they contrived to nullify the fundamental law. Yet their contention, vehemently expressed throughout this period, was that they were proceeding in full accord with the Constitution. They took the view, as in New Jersey in 1852, that “the Constitution was a compact between the several States.” They insisted, as in Massachusetts in 1855, that the Federal Fugitive Slave Law was a “direct violation” of the Tenth Amendment. And they repeatedly avowed their right to resist laws and decrees which they viewed as palpably unconstitutional.

This point alone will be renewed: If Maine, Vermont, Massachusetts, Ohio, Wisconsin, and their neighbors were wrong then, it may be supposed that Virginia, South Carolina, and Georgia, in resisting the Supreme Court’s school decree, are wrong now. But if the Northern States were right then, in resisting and opposing what they regarded as encroachments upon sovereign rights, then it equally may be supposed that the South is right today.

This prohibition was among the relatively few direct prohibitions laid upon the States by the original Constitution. It was first asserted by Marshall, in the Yazoo controversy.(186) It was dramatically expounded in Webster’s famed Dartmouth College case (“It is a small school, but there are those who love it”).(187) It was refined in the States’ favor in a Rhode Island case,(188) and again interpreted—a bit tremulously—in the States’ behalf in a suit involving New York’s bankruptcy law in 1827.(189) But it was not until the years immediately preceding and following the War of 1861-65 that the provision led to seriously recurring conflicts between State and Federal authority. For the purpose of these notes, which are intended to sketch representative instances of official interposition by the States of their sovereign power, it will suffice to call attention to certain disputes in Ohio, and in the Midwest.

Here we may begin by observing that one of the greatest problems of the expanding American frontier lay in the establishment of a sound banking system. Some of the problems of the Banks of the United States have been described, but the travails of individual State and private banks were equally severe. It was in an effort to stimulate the organization of sound banks that Ohio, in 1845, adopted a law providing, among other things, that a tax would be imposed of only 6 per cent on a bank’s earnings; this tax was to be “in lieu of all taxes to which the company, or its stockholders therein, would otherwise be subject.” Pursuant to this law, some one hundred fifty banks rapidly came into existence.

The position taken by the State of Ohio was substantially this: The Legislature of 1845 could not have bargained away forever the taxing power of the State. “If they had attempted it, would it not have been treason—treason of the blackest sort?”(190) The constitutional prohibition against impairment of contracts never was intended to embrace the tax laws of a State, or indeed any enactments of a State legislature. John Marshall’s rule in the Dartmouth College case was “subversive of the rights of the people, at war with the principles of our government, and fraught with mischief incalculable.”(191) It was “an ill-considered and insupportable dictum.”(192) No power of sovereignty was more vital than the power to tax, and if this power were irrevocably bartered away by one legislature as to one subject of taxation, future legislatures would abandon the people’s rights in other fields, and ultimately all sources of revenue would have been “contracted” away.

The Supreme Court took an exactly opposite view. On May 24, 1854, through Justice McLean, it declared Ohio’s act of 1851 unconstitutional.(193) The Legislature of 1845 had been the “exclusive judge” of the privileges to be offered to the Piqua Branch Bank as a condition of its establishment. Having made a bargain, Ohio must stick to it.

This was a 5-4 decision, with the four Southern judges (Taney, Catron, Daniel and Campbell) warmly dissenting. The exemptions granted to expanding corporations by the various State legislatures had become a growing scandal,(194) and Campbell at least was well aware of “the sly and stealthy arts to which State Legislatures are exposed, and the greedy appetites of adventurers for monopolies and immunities from the State right of government.”

The opinion in the Piqua Branch case, Warren comments, “produced a sensation.” Hostility to the Court, already running high as a result of the slavery issue, reached a new pitch. Nor was this antagonism tempered by the Court’s almost simultaneous decision, in a somewhat corollary case, involving the Ohio Life Insurance and Trust Company. Here the facts were that the company had been incorporated in 1834; its existence had not been conditioned upon the legislative “contract” of 1845. When the State sued to collect the higher tax under the law of 1851, the company cited the binding nature of its original charter; this, it was urged, constituted a contract which no legislature could impair. The Ohio Supreme Court rejected this contention, and on appeal, surprisingly enough, the Supreme Court—through Chief Justice Taney—accepted some of the reasoning of the court below. His opinion is cited in these notes because Taney had some things to say that are pertinent to questions in our own time: “It will be admitted on all hands,” he remarked, “that with the exception of the powers surrendered by the Constitution of the United States, the people of the several States are absolutely and unconditionally sovereign within their respective territories.” In Ohio, the sovereign people had settled questions of corporate charters in their constitution of 1802—such charters granted no exemptions from future tax levies—and in Taney’s view the subject was closed. Let us note what he said next:

When the Constitution of a State, for nearly half a century, has received one uniform and unquestioned construction by all the departments of the government, legislative, executive and judicial, I think it must be regarded as the true one. . . . Certainly a construction acted on as undisputed for nearly fifty years by every department of government, and supported by judicial decision, ought to be regarded as sufficient to give to the instrument a fixed and definite meaning.(195)

Certainly it may be suggested that Taney’s comment is a sound guide for giving a “fixed and definite meaning” to any constitution—that of Ohio in 1854, or that of the United States precisely a century later.

But if Ohioans thought any sort of truce with the Court had been reached in the Ohio Life case, they shortly were disabused. Two years later, the Supreme Court cracked down again on Ohio’s “impairment of contracts” in the matter of bank taxes. This time the Court held that even the sovereign people of Ohio themselves, by amending their own State Constitution, could not wipe out the bank law of 1845. “Moral obligations never die,” said the Court, and it went on to read Ohio a stiff lecture on the supremacy of the Supreme Court in its role as final arbiter of the Constitution.(196)

Justices Campbell, Catron, and Daniel again dissented, and some of Campbell’s observations merit brief quotation:

As to the claim made for the court to be the final arbiter of these questions of political power, I can imagine no pretension more likely to be fatal to the constitution of the court itself. If this court is to have an office so transcendent as to decide finally the powers of the people over persons and things within the State, a much closer connection and a much more direct responsibility of its members to the people is a necessary condition for the safety of popular rights.

Campbell went on to quote a comment by Justice Levi Woodbury in the politics-ridden case of Luther vs. Borden, some seven years before. “If the people,” Woodbury had remarked, “in the distribution of powers under the Constitution, should ever think of making judges supreme arbiters in political controversies, when not selected by nor, frequently, amenable to them, nor at liberty to follow such various considerations in their judgment as belong to mere political questions, they will dethrone themselves, and lose one of their own invaluable birthrights; building up in this way—slowly, but surely—a new sovereign power in the Republic, in most respects irresponsible, and unchangeable for life, and one more dangerous, in theory at least, than the worst elective oligarchy in the worst of times.”(197)

Unhappily, Campbell’s dissenting opinion was of little value to the angry people of Ohio. But for a time, the State Supreme Court went along with the United States Supreme Court.(198) Then, in 1857, the Ohio judges boiled over. Again they insisted that the Legislature of 1845 had “no right to abridge or extinguish the exercise of this [taxing] power by a future legislature.” And with all deference to the Supreme Court, “we do not . . . feel at liberty to depart from our own settled convictions.” Judge Brinkerhoff, glaring at the Piqua Branch and Woolsey cases, remarked that the Supreme Court’s reasoning had failed to satisfy his judgment; he thought the high Court should have an opportunity to reconsider the question.(199)

For some reason, that judgment of the Ohio court does not appear to have been appealed; and perhaps emboldened, the Ohio State Supreme Court again in 1859 interposed its sovereign powers and once more rejected the Supreme Court’s ruling. Speaking for the Ohio court, Judge Gholson examined the relationship of State appellate tribunals to the U.S. Supreme Court, and had this to say: “As a practical question, as a question of policy, acquiescence is probably the wiser and better course. But the limited and qualified character of the appellate jurisdiction . . . does not countenance the idea . . . that Congress had in view a uniformity of decision upon questions arising under the Constitution and laws of the United States, and that the Supreme Court was the common arbiter for the decision of such questions.” Comity, decorum, and respect, said Judge Gholson, are to be regarded, “but justice and right are entitled to a higher consideration.”(200)

This time the rebellious decision of the Ohio judges was appealed, and Mr. Justice Wayne slapped it down in the brusque fashion of Father William. We have said it three times, he said for the Court, and that is enough: Your bank act of 1851 is unconstitutional. Judgment reversed.(201)

The same question of contract impairment figured in a long running battle between the Court and a group of Midwestern States in the matter of railway subsidies. Ordinarily, these grants to the on-reaching railways were financed by municipalities, eager to attract the rail lines, through the issuance of municipal bonds. As often as not, the gaudy hopes of the municipalities soon were reduced to ashes: The railroad never came, or it came ten miles away, or something happened, and the bonds were in time repudiated. In case after case, the contention was advanced that the bonds constituted a contract which no State or a sub-division of the State might validly impair, and in case after case the Supreme Court upheld this contention.(202) Yet a peculiar problem was created when the highest judiciary of a State had ruled the bonds not binding. In overruling the State courts, the Supreme Court in effect undertook to legislate for itself; the States fought back, and in time the States won. Iowa was a leader in this fight. When the United States Supreme Court, in Gelpcke vs. Dubuque, undertook to prevent the Iowa State court from reversing itself on the propriety of a bond issue, Iowa rebelliously defied the Court’s mandate.(203) When the Supreme Court insisted that State courts “are destitute of all power to restrain either the process or proceedings in the national courts,” Iowa demonstrated that she was not destitute at all.(204) When the Supreme Court termed the State injunctions mere “nullities,” the State courts made them stick; and when the Court declared that neither State nor Federal tribunals “can impede or arrest any action the other may take, within the limits of its jurisdiction,” the antagonized Midwestern States made it apparent that they could, and would, impede such Federal mandates when they deemed the writs palpably unconstitutional and wrong.(205) By 1888, the Supreme Court, obviously having had the worst of it, backed down.(206)

NOW, ONE of the most cherished criticisms advanced against the doctrine of State interposition is that if the theory had any validity prior to 1865, after that it had none. “The victory of the North killed State sovereignty,” said Chase, in ripe satisfaction.(207) “The doctrine so long contended for,” said a stern-visaged Bradley, “that the Federal Union was a mere compact of States, and that the States, if they chose, might annul or disregard the acts of the national Legislature, or might secede at their pleasure, and that the general government had no power to coerce them into submission to the Constitution, should be regarded as definitely overthrown.”(208) And a contemporary critic has commented that “the denial of the right of secession by the unanswerable argument of superior force put an end to the claim that the American States were full-fledged and independent sovereignties.”(209)

The unanswerable argument of superior force. . . . Is the argument in fact unanswerable? The victory of the North. . . . In a society that rests upon a fundamental written law, is law thus made? Those who espouse the theory that Appomattox put an end to State sovereignty—that Lee surrendered not only his army, but the Tenth Amendment also—must accept two propositions: First, that the victorious Northern States, which dictated the terms of the peace and dominated the Congress thereafter, were incredibly short-sighted and stupid; and second, that our basic law rests not upon a Constitution, but upon the cannon. Actually, there is a third proposition also: That the Supreme Court, no less than the Congress, has engaged since then in ninety years of palpable dumbshow and nonsense.

But what did the victors do? None of these things. Three amendments, and three only, were engrafted onto the Constitution in the years following the War. The Thirteenth (December, 1865) put an end to slavery. The Fourteenth (July, 1868) provided, among other things, that no State could infringe the equal protection of the laws. The Fifteenth (March, 1870), demonstrating that the Fourteenth was not all-inclusive in the field of civil rights, provided that there should be no racial discrimination upon the right to vote.

A society boasting of its enlightened civilization—its “democracy”—could not have it otherwise. The alternative is a law that rests on a guncotton bed. In this theory, we must look not to Philadelphia in 1787, but to Gettysburg in 1863. The Constitution, so conceived, has value only as wadding for a cannon ball. Armed might succeeds written law.

During this period of 1868 to 1888, seventeen judges sat on the Supreme Court. They included judges good, bad, and indifferent —among them several whose names should not have been so thoroughly forgotten. In an uncertain period, sometimes the Court spoke uncertainly; but over the period as a whole, in a day of emotional exhaustion, these judges managed to restore a terribly needed vitality to the Constitution.

The year following Davis’s appointment saw the confirmation of Stephen J. Field of California, who surely must rank among the more fabulous personalities identified with the Court. If his last years on the Court were pathetic (like Grier, he had to be told to resign, but only after out-serving Marshall), his early career was impressive.

In 1864 came Taney’s long expected death—he was eighty-seven—and with it the appointment of Salmon P. Chase of Ohio as Chief Justice. Chase, a former member of the Senate and Lincoln’s Secretary of the Treasury, was a surprise appointment: He had not practiced actively for fourteen years, and generally was regarded (by himself, among others) as an aspirant for the Presidency; but he served, on the whole, quite notably.

Waite was followed on the Court, in 1877, by John Marshall Harlan of Kentucky. He, too, had no previous judicial experience, but in his thirty-four years on the bench, he set a notable record. Then came William B. Woods of Georgia, in 1880, first Southerner on the Court since Campbell in 1852, but actually a transplanted Yankee: Like the abolitionist Stanley Matthews, whose nomination to the Court was barely confirmed in 1881, he had served in the Union army as an officer from Ohio. Then came Horace Gray, succeeding Clifford in 1881, long a member of the Supreme Judicial Court of Massachusetts, a stern martinet of a man, six feet four inches tall, “strict and punctilious,” a believer in strong national government.(210)

Last of the judges of 1868-88 were Samuel Blatchford of New York, who came on the bench in 1882 with fifteen years’ experience behind him as a Federal judge specializing in maritime and patent law,(211) and the black-bearded Mississippian with the lovely rolling name of Lucius Quintus Cincinnatus Lamar.

These seventeen men sat on the bench in a period in which State sovereignty was supposed to have been killed off. But was a national supremacy broadly asserted by the Court or conceded by the States? Precisely the reverse was true.

It is notable, in this regard, that in the period of sixty-four years, from Marshall’s ruling in McCulloch vs. Maryland in 1803 [see note], to the Court’s opinion in Ex Parte Garland in 1867, only four acts of Congress were held unconstitutional.(212) But in the brief span of four years, 1870-73, no fewer than six acts of Congress were voided. These blows at national power began with the first Legal Tender case. This arose in Kentucky in 1860, when a Mrs. Hepburn borrowed $11,250 from one Henry Griswold. At the time the loan was made, only gold and silver were legal tender for payment of private debts, but in 1862, Congress authorized the issuance of $150,000,000 in United States Notes. When Mrs. Hepburn subsequently attempted to pay off her loan in the new Treasury notes, Griswold refused to accept them and suit resulted. To the immense chagrin of President Grant, Chase and three associates (there were two vacancies on the Court) held that Congress had no authority, under the Constitution, to enlarge its power to coin money into a power to make paper currency legal tender.(213) Scarcely had the Court stunned Congress on this major law before it slapped down the Congress on a minor statute: In 1870, the Court voided an act of 1867 which oddly made it a misdemeanor (unrelated to revenue laws) for any person to sell a combination of naphtha and illuminating oil.(214) This was swiftly followed by a ruling in a New York case, in which the Supreme Court justices upheld New York State judges in refusing to approve the removal of a certain case from State to Federal jurisdiction, pursuant to an act of 1863.(215)

The following year came another severe blow against national authority: Between 1864 and 1867, Congress had adopted several laws levying an income tax.(216) In Massachusetts, a county probate judge, J. M. Day, paid his tax under protest, and then sued for its recovery. His contention was that Congress had no power to impose a tax upon State officials. When the case reached the Supreme Court, a solid majority of the Court agreed. Six years after State sovereignty was said to have been extinguished at Appomattox, Judge Nelson said this for the Court:

It is a familiar rule of construction of the Constitution of the Union, that the sovereign powers vested in the State governments by their respective constitutions remained unaltered and unimpaired, except so far as they were granted to the government of the United States. . . . The government of the United States claims no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. . . .(217)

The two governments, said the Court, are “on an equality,” and if the States could not tax Federal officials, which had been already decided,(218) neither could the Federal government tax State officials.(219) The States, within the limits of their reserved powers, said Nelson, “are as independent of the general government as that government within its sphere is independent of the States.”

Just one year later, in 1872, the Court again acted summarily upon an act of Congress. A vengeful law, aimed at confiscation of property owned by Southerners during the War, was ruled unconstitutional.(220)

Finally, completing this group of half-a-dozen blows against nationalist expansion, the Court in 1873 refused to sanction a Federal tax that was imposed, in effect, upon the city of Baltimore. “Of all the burdens imposed upon mankind,” said Judge Hunt, “that of grinding taxation is the most cruel.” And more than fifty years after a Federalist Court under Marshall had chastised Maryland in a tax case, a States’ rights Court under Chase came to Maryland’s rescue.

This is not to say, of course, that every major decision in the postwar period went in the States’ favor. Of course not. There was, notably, a case from Wisconsin that arose when an eighteen-year-old boy, Edward Tarble, falsified his age and his name and enlisted in the army. His father obtained a writ of habeas corpus from a State commissioner, who directed that the youth be released. On appeal to the State Supreme Court, this judgment was affirmed. The recruiting officer then appealed to the United States Supreme Court, and Judge Field delivered himself of some remarks to the very State court that twelve years earlier, in the Booth case, had defied the Federal tribunal:

There are within the territorial limits of each State two governments, restricted in their spheres of action, but independent of each other, and supreme within their respective spheres. Each has its separate departments; each has its distinct laws, and each has its own tribunals for their enforcement. . . . The two governments in each State stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories. That particular consists in the supremacy of the authority of the United States when any conflict arises between the two governments.(221)

Notably, Chief Justice Chase dissented from his brothers’ view. In his opinion, there was no doubt that State courts had a right to issue writs of habeas corpus for inquiry into the jurisdiction of a Federal court over a prisoner. And he was still more convinced, if possible, that State courts had a right to inquire, through habeas corpus, into the detention of a citizen held merely by a Federal official, without the sentence of a court. To deny such powers to a State court, he said, “is to deny the right to protect the citizen by habeas corpus against arbitrary imprisonment in a large class of cases.”

But the majority’s holding in Tarble’s case was the exception in this period, not the rule. Time after time, in major cases, States’ rights prevailed. In Thomson vs. Union Pacific, the Court upheld the right of States to tax a railroad built with Federal funds.(222) In Osborne vs. Mobile, the Court approved a State license tax on express companies doing business partly outside a State.(223) When a woman in Illinois contended that she had a right, under the Fourteenth Amendment, to practice law in State courts, the Supreme Court affirmed the power of Illinois to legislate on such matters for itself.(224) When a murderer in California was sentenced to death on proceedings that stemmed from an information instead of an indictment, the Court held this was the exclusive business of California.(225) Similarly, Pennsylvania was upheld in a law suppressing the manufacture of oleomargarine;(226) Iowa and Kansas were upheld in State liquor laws,(227) and Mississippi was affirmed in a State act creating a railroad commission.(228) Why should the States have interposed? Their high place was repeatedly affirmed.

BUT THE most significant cases in this period, of course, were those in which the Supreme Court construed the newly imposed Reconstruction Amendments. And of these, the most vital to the cause of States’ rights was the Court’s ruling of 1873 in the famed Slaughterhouse cases.(229) Warren has written of this decision that it “profoundly affected the course of the future history of the country.”(230) It was “one of the glorious landmarks of American law.”(231) The case arose when a corrupt, carpet-bag legislature of Louisiana awarded a twenty-five-year monopoly on the operation of a slaughterhouse in New Orleans to a single company. Independent butchers protested that a thousand men had thus been deprived of their right to engage in business; they had been denied, in the language of the new amendment, “equal protection of the laws”; their privileges as United States citizens had been abridged, and their property had been taken from them without due process of law.

But in April, 1873, nearly five years after the Fourteenth Amendment had been declared ratified, the Court ringingly held that the amendment was not intended “to destroy the main features of the general system” of constitutional government. The amendment was not designed to bring within the jurisdiction of the Court “the entire domain of civil rights heretofore belonging to the States.” To thus enlarge the scope of the Fourteenth Amendment would be to make the Court itself “a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with these rights.” This responsibility the Court was not prepared to accept.

The “great source of power in this country,” said Miller for the Court, lies in “the people of the States.” They have reserved unto themselves, he said, in their respective States, broad police powers; and upon the preservation of these powers, in State hands, “depends the security of social order” and “the enjoyment of private and social life.” To seize these powers away from the States would be to “fetter and degrade” the State governments, and “radically to change the whole theory of the relations of the State and Federal governments to each other, and of both these governments to the people.”

Within a period of a few years followed five other cases in which the Supreme Court continued to uphold and defend the rights of the States under the Reconstruction amendments. The opinions are important to us today for the strong light they shed on what the amendments meant then, when they were freshly adopted and their intended effect on State and Federal relationships was clear.

In the first of these, the Court voided parts of the Civil Rights Enforcement Act of 1870; the judges saw it as their duty to “annul [the act’s] encroachments upon the reserved powers of the States and the people.”(232) In the second, the Court took a level-headed look at the indictment of a group of white men who had been charged with conspiring to prevent two Negroes from voting in Louisiana. The right to vote, said the Court, is a right that comes from the State; it is not a right subject to regulation as a right of “citizens of the United States.”(233) In United States vs. Harris, the Court threw out the first anti-lynch law to come from Congress. The so-called Ku Klux Act of 1871 was not warranted by the Reconstruction Amendments: Congress could pass laws to inhibit abridgments of privileges and immunities by a State, but it could not constitutionally legislate against ordinary crimes of violence.(234) In the Civil Rights cases, decided in October of 1883, the entire Civil Rights Act of 1875 was thrown out. This act had undertaken to provide a fine of $500 to $1,000, or a jail sentence of thirty days to one year, on any person convicted of refusing a Negro equal access to a public inn, conveyance, theater, or other place of public amusement. The cases originated in Kansas, California, Missouri; and Tennessee. But the rules laid down by a theater owner for his audience, or by an inn keeper for his guests, are his own personal business, said the Court. Congress cannot validly encroach upon this reserved domain.

Finally, attention may be directed to Barbier vs. Connolly, in 1885, in which the Court upheld a municipal ordinance in San Francisco which prohibited laundry work at night. The ordinance was palpably directed at Chinese laundry operators. But the Court held that in its guarantee of civil rights, the Fourteenth Amendment aimed only at such civil rights as these—the right of all men to equal access to the courts, to enforcement of their contracts, to equal protection of their property, and equal punishment for crime. The amendment was not designed, said the Court,

to interfere with the power of the State, sometimes termed its “police power,” to prescribe regulations to promote the health, peace, morals, education, and good order of the people.(235)

In refusing thus to intervene in California’s local affairs, the Court was not making new law. It was adhering to what was, for a time at least, solidly established policy. Forty years earlier, in upholding a port inspection law adopted by New York, the Court had assumed a position it was pleased to call “impregnable”:

That a State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States.(236)

The internal police powers of a State, never having been surrendered or delegated, therefore could not be restrained by Federal authority; in these fields, the authority of the State was “complete, unqualified, and exclusive.” Taney had said the same thing, at about the same time, in the famed Charles River Bridge case: “We cannot . . . by legal intendments and mere technical reasoning, take away from [the States] any portion of that power over their own internal police and improvement, which is so necessary to their well-being and prosperity.”(237)

But in time, of course, the Court was to take the power away. Taney was dead then, God rest him.

THESE WELL-FOUNDED doctrines of State power were upheld for a time not only as to “civil rights” cases growing out of the Reconstruction Amendments, but also in a wide variety of other actions in which, long after the War, States both North and South asserted their sovereign authority. Notable among these were the Granger cases, in which the Court approved State laws in Illinois, Wisconsin, Minnesota, and Iowa fixing freight and passenger rates on railroads and fees at grain elevators.(238) Some of Marshall’s old rules upon impairment of contracts tumbled in cases from Massachusetts and Mississippi.(239)

But in the final decade of the nineteenth century the judicial trend that had been swinging toward the States began to turn back toward an expansion of Federal powers. State immigration statutes toppled; sweeping new authority was vested in Congress as to the issuance of currency and the construction of internal improvements; in a series of opinions in the 188o’s, the Supreme Court sharply curtailed the effectiveness of the Eleventh Amendment, by sanctioning suits against States for enforcement of obligations under bond issues.(240)

In no field, however, was this swing of the pendulum more significant than in the construction given by the Court to the “commerce clause.” The story is too well known, perhaps, to justify very extended review, yet no account of State and Federal conflicts, or of the growth of judicial supremacy over the States, would be complete without some chronicle of the melancholy tale. Congress and the Court, working in beautiful harmony, together snatched from the States and the people almost the last vestige of local control over local affairs. And they did it under the guise of that brief clause in Article I of the Constitution, vesting Congress with power “to regulate commerce . . . among the several States.”

It was an insidious process, conducted with the care of the cat that stalks her prey—now creeping forward, now pausing to sniff the air; now advancing, now lying still as the bird takes alarm; then edging forward again, and so, step by inexorable step, moving to the ultimate seizure. Probably it is too late now for the States to do much about it. But perhaps a backward look might even yet save them from ending up like Prokofieff’s duck, quacking feebly from inside the wolf.

In the beginning, it was thought that “commerce” meant simply the act of transporting goods. Commerce began when the thing transported moved to a carrier for transportation.(241) The power to regulate such commerce among the States, in this uncomplicated era, was viewed primarily as a power vested in Congress to see to it that no hindrance was placed in the way of such transportation.

But in time, a second gateway opened up: The original doctrine grew into a concept that the clause applied not only to transportation, but also to regulation of the thing transported. If these things had, in themselves, “some harmful or deleterious property,” Congress could exercise its power to regulate as a power to prohibit.(242)

The second gateway gave way to a third: Congress had power to regulate not only commerce, and the commodity in commerce, but also to regulate the conditions under which the commodity or thing were manufactured—and the conditions under which the commodity could be bought and sold.

In recent years, even that concept has proved inadequate to the aggrandizement of centralist power. The theory now is that should “the wells of commerce go dry,” as Hughes once observed, the Congress has broad power to fill them up again—that is, to encourage, stimulate, and foster commerce among the States.(243) Let us trace some of the more significant milestones on this road to nationalist power.

As early as 1876, the Court began to modify some of the stout assertions it had made in the Miln case (1837) in behalf of State inspection laws.(244) The brave powers given to the States in the Granger cases were abridged within a decade after their promulgation.(245) Then, in 1890, came what one critic termed “the most crushing blow against the rights of States which has ever been dealt by that tribunal”—the Court’s ruling that States could not exercise their reserved powers against the importation and sale of goods in their “original package.”(246) What this meant, in immediate application, was that prohibition States could not prevent the importation and sale of liquor, but the doctrine opened a wide doorway for other laws to follow.

These major strides toward national authority were accompanied, to be sure, by an occasional backward step and a bow to the States. Thus, certain aspects of mining and manufacture were held—temporarily—to be not a part of interstate commerce.(247) In the first major case under the Sherman Act, the Court held, 5-4, that sugar interests were not subject to the law’s restraint. The Court, indeed, was a little shocked that this should even be suggested: “Slight reflection will show that if the national power extends to all contracts and combinations in manufacture, agriculture, mining, and other productive industries, whose ultimate results may affect external commerce, comparatively little of business operations and affairs would be left for State control.”(248) The Court, as events were to prove, was to give this apprehension very “slight reflection” indeed.

Yet for a time, the eagle’s wings were clipped. Most astonishing of all the decisions in this period, unfavorable to national authority, was the Court’s stunning decision in 1895, by which it invalidated the whole of an income tax law adopted by the Cleveland administration.(249) Actually, it is a little unfair to say that “the Court” voided the law: One man, Justice George Shiras, shaped the Constitution by changing his not very brilliant mind. The result was that the century-old precedent of Hylton vs. United States (1796)(250) vanished in a twinkling, and the shocked country won a clear view of the vagaries of judicial legislation. Justice White, dissenting, offered the interesting argument—and it is quite pertinent to the point of this essay—that the failure of the people to amend their Constitution in this hundred-year period, in order to overthrow the Hylton decision and prohibit an income tax”—was practically a ratification of that policy, and an acquiescence in the settled rule of interpretation theretofore adopted.” William Jennings Bryan noted furiously that “the income tax was not unconstitutional when it was passed; it was not unconstitutional when it went before the Supreme Court for the first time; it did not become unconstitutional until one judge changed his mind, and we cannot be expected to know when a judge will change his mind.”(251) But though scores of Congressmen and jurists protested strenuously, it took the Sixteenth Amendment to undo the opinion.

The same session of 1895 that brought invalidation of the income tax saw many a States’ Righter outraged by the Court’s ruling in the Debs case, in which the Court approved the use of both Federal troops and Federal injunctions to put down a major strike.(252) The months just preceding the Debs case also had seen the States offended by opinions outlawing statutes from Texas and Maryland relating to rate regulation of railroads.(253) These rulings were so drastic in their implications that Field protested the Court was palpably invading the reserved authority of the States. Other observers thought so, too: The Democratic National Convention of 1896 adopted a plank denouncing this “new and highly dangerous form of oppression by which Federal judges, in contempt of the law of the States and rights of citizens, become at once legislators, judges and executioners.” In Oregon, Governor Sylvester Pernoyer condemned a system of government “by the plausible sophistries of John Marshall” as a government in which “a judicial oligarchy has supplanted the Constitution.”

For the States there was worse to come. In 1896, the Court took another big step toward nationalism, when it sanctioned Federal condemnation of the Gettysburg Battlefield for a national cemetery as a necessary and proper action under the general welfare clause.(254)

Then a riptide of opinions began to wash away State powers. Congress helped. Following the basic Interstate Commerce Act of 1887, the Congress had piled onto the statute books the Safety Appliance Act of 1893. Now it added the Automatic Coupler Act of 1903, the Hours of Service Acts of 1907 and 1916, the Employers Liability Acts of 1905 and 1908, the Hepburn Act of 1906 (which superseded all State laws limiting recovery for loss of goods in transportation), the Boiler Inspection Acts of 1911 and 1915, the Plant Quarantine Act of 1912, and ultimately the Adamson Act of 1916, which undertook to fix wages and hours for railway employees.

With the single exception of the Employers Liability Act (the so-called “Yellow Dog Act”),(255) each of these bold ventures into the “regulation of commerce” won the Court’s approval. Thus, with the Court’s blessing, the second gateway of the commerce clause swung wide: Congress no longer found itself limited to regulating mere transportation—it was invited to regulate the things transported. In swift succession, the Supreme Court approved laws that banned the interstate shipment of such evils as lottery tickets,(256) impure food,(257) narcotics,(258) prostitutes,(259) and an infinite variety of other goods held to be inherently evil—diseased nursery stock, moths and plant lice; stolen autos, prize-fight films, and game birds taken in violation of State law.

This deliberate widening of Federal authority was accompanied, in another field of law, by a corresponding restriction of State powers: In a series of cases, the Supreme Court sustained suits brought against State officials to restrain them from enforcing State laws alleged to be unconstitutional. Oregon was estopped from enforcing an act governing the sale of land; North Carolina, Missouri, Texas, and Nebraska ran into Federal injunctions on their railroad laws; South Carolina was snubbed on a dispensary statute; Michigan and Indiana saw their tax-assessment statutes effectively nullified. These cases came to an angry boil in March of 1908, when the Supreme Court upheld the punishment imposed by a Federal court upon Edward T. Young, Attorney General of Minnesota, for his temerity in attempting to test a State rate law against a railroad.(260) The Federal Circuit Court had ordered Young (and in effect, had ordered Minnesota) not to bring such a suit, but Young persisted and it cost him a $100 fine. He refused to pay, and was taken in custody by a United States marshal. Then a writ of habeas corpus, issued by the Supreme Court itself, brought the matter up for review. A majority of the Court, through Justice Peckham, held that Minnesota’s rate law was “unconstitutional on its face,” and therefore, that Young’s action in bringing suit was void. Justice Harlan interposed a thirty-five-page dissenting opinion, in which he commented that the majority’s view, if long sustained, “would inaugurate a new era in the American judicial system, and in the relations of the national and State governments.”(261) It would enable subordinate Federal courts, said Harlan, “to supervise and control the official action of the States as if they were ‘dependencies’ or provinces,” and it would leave the States of the Union “in a condition of inferiority never dreamed of when the Constitution was adopted or when the Eleventh Amendment was made a part of the supreme law of the land.”

Many of the States quite agreed with Justice Harlan. The Nebraska Legislature adopted a strong resolution demanding that Congress pass remedial legislation to curb the Court’s mandates. And Congress, in 1910, complied.

But the Court was unmoved. In 1914, in the Shreveport case, it cracked down again on State regulation of railroads with a decision so drastic that the Attorneys General of forty-two States intervened—futilely—against the encroachment.(262) The Court opened the vast Pandora’s box of public power, when it authorized Federal sale of excess electric power resulting from navigation projects.(263) It started upon the trail of Federal regulation of natural gas.(264)

Then—gently at first, but irresistibly—Court and Congress opened still a third gateway in the Commerce Clause: Having established the power of Congress to regulate transportation and the things transported, the judges turned to regulation of the terms and conditions by which commodities are manufactured. It was not an easy turning. When a test of the first Child Labor Law came along, the Court held, a little uneasily—perhaps a little guiltily—that it had gone far enough.(265) In this case, the father of two teen-aged boys, employed in a mill in Charlotte, N.C., brought suit to prevent enforcement of the Federal act of 1916 prohibiting child labor. A Federal District Court held the act unconstitutional, and on appeal, the Supreme Court agreed. It was one thing, said the Court, to prohibit interstate shipment of things that were evils in themselves—diseased plants, prostitutes, lottery tickets, and the like—but cotton goods were not inherently evil: The Congress had gone too far; it had over-reached its authority. And the Court, through Justice Day, observed:

In time, to be sure, Holmes’ views were to prevail. But in 1918, Federal prohibition of child labor was more than a majority of the Court would accept. Yet the Packers and Stockyards Act of 1921 met the Court’s approval,(266) and the Grain Futures Act of 1922 seemed clearly within the powers of Congress.(267)

IF THE flow of the commerce doctrine may be left in a literary bayou for a few pages, attention may be directed abruptly toward an entirely separate issue that resulted in sharp conflict between State and Federal authority in the period under consideration. This was, of course, the matter of national prohibition.

But scarcely had the long dark night begun before a thirsty people, suddenly appalled, began to resist the amendment just adopted. Twenty thousand persons, spurred on by the late Mr. Mencken, paraded through the streets of Baltimore; another ten thousand participated in a protest before the Capitol in Washington.(268) Bootleggers and rumrunners came forward, dutifully, to perform those patriotic services for which Nature had fitted them. In New York, an Association Against the Prohibition Amendment was chartered, with an announced purpose “to make the Eighteenth Amendment forever inoperative.” Rhode Island made the mistake of testing the Amendment, only to be told that no State could undertake “to defeat or thwart” its provisions.(269) Eminent attorneys urged Connecticut to take a still bolder position— that not even forty-six ratifying States and the Supreme Court could take from sovereign Connecticut the power reserved inalienably by her people to engage, intrastate, in the distillation and sale of whiskey.(270) The late Owen Brewster, then Governor of Maine, encouraged the opposition: “Centralization and usurpation have been the keynote of American government in the decade that is just passed.”(271) So, too, did New Jersey’s Governor A. Harry Moore in his inaugural address of 1926: “‘An indissoluble Union of indestructible States,’“ he said, quoting Chase in Texas vs. White, “is rapidly becoming an indissoluble Union of impotent States. . . . Let ‘restoration of States’ rights’ be our watch-word.”(272)

The amendment had given Congress and the States concurrent power to enforce prohibition. New York in 1923 exercised her sovereign powers by a form of nullification in reverse: New York repealed her State prohibition enforcement act, and blandly left Federal authorities to carry on as best they could. The United States Attorney for the Southern District of New York termed this unkind action “the hardest blow the enforcement of the Eighteenth Amendment has received.” And so uninterested was New York in enforcing the plain language of the United States Constitution, that speakeasies multiplied as assiduously as rabbits. By 1929, Manhattan police matter-of-factly reported they had counted 32,000 speakeasies, but “might have missed a few.”

Throughout this period, as Alfred E. Smith was to remark later, the citizens who continued to fight prohibition were “referred to as Nullificationists, as enemies of the Constitution, as people that wanted to destroy organized and properly constituted government.” But in actual fact, in the view of Senator Herbert Lehman, who was then Governor of New York, these foes of prohibition were in reality “devoted and patriotic men and women [who carried on a fifteen-year struggle] against sumptuary legislation which at no time represented the uncontrolled sentiment of a majority of the people of this country.” The amendment’s ultimate repeal in 1933, said Mr. Lehman, showed “the force of intelligent, well-considered public opinion, aroused by the abuses and failures of a statute that never commended itself to the reasoned judgment of the people.” Repeal, to Mr. Lehman, represented victory in a fight “to regain that balance between State and Nation which is guaranteed by the Constitution of the United States, and to substitute temperance for hypocritical and unenforceable prohibition.”

For a few years, the tide of battle flowed to the States. The first major test of Roosevelt’s depression measures came with the National Industrial Recovery Act of June, 1933, which set up some seven-hundred codes of fair competition by which hours, wages, customer relations, and collective bargaining would become subject to Federal control. Under one of these codes—the Live Poultry Code for New York City—a small slaughterhouse in Brooklyn fell into the hands of Federal authority. Its sin, among others, was that the Messrs. Schechter had sold “an unfit chicken” to a customer.

Hughes himself spoke for a unanimous Court. True enough, he said, times were desperately bad—but “extraordinary conditions do not create or enlarge constitutional power.”(273) In the Court’s view, the act went far beyond the limits set down by the Tenth Amendment; the act not only usurped a power not delegated to Congress—it also undertook to delegate that power to private hands. It was “delegation running riot,” as Cardozo remarked in a concurring opinion.(274) Plainly, in the Court’s view, the power to regulate commerce extended only to actions that affected the current of commerce; and in the case of Schechter’s chickens, in Brooklyn, “the flow in interstate commerce had ceased.” Hughes went on to cite what he called “the necessary and well-established distinction between direct and indirect effects” on interstate commerce; and where an effect is “merely indirect,” such transactions “remain within the domain of State power.” If this were not so, he said reflectively, “the Federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal government.” So saying, the Court gazed upon Mr. Schechter’s chickens and slew the Blue Eagle. It was a memorable decision.

Shortly thereafter came a second major test of the New Deal program. In 1933, Congress had passed the Agricultural Adjustment Act, which undertook, among other things, to levy a tax upon cotton processing for the benefit of cotton farmers who would plow under their surplus crops. When the receivers for the Hoosac Mills declined to pay the tax, and contested the act’s constitutionality, the Supreme Court in 1936 held the law void.(275) The act, said Roberts for the Court, was no more than an attempt to take money from processors and bestow it upon the farmers; it was an attempt to regulate production, “a matter beyond the powers delegated to the Federal government,” and hence in violation of the Tenth Amendment. To accept Mr. Roosevelt’s construction, said the Court, would require that “every provision and every fair implication from [the Constitution] . . . be subverted, the independence of the individual States obliterated, and the United States converted into a central government exercising uncontrolled police power in every State of the Union, superseding all local control or regulation of the affairs or concerns of the States.”(276)

It was brave language. But perhaps the States were so pleased by the outcome of the case that they failed to penetrate some dicta that Roberts put forth, foggily but firmly, on the matter of the “general welfare” clause. It was the government’s position that the AAA was justified by the power vested in Congress “to lay and collect taxes, . . . to pay the debts and provide for the common defense and general welfare of the United States.” What about this clause? Roberts remarked, with a great gentleness, that students of the Constitution for many years had disagreed about the meaning of the welfare clause. Madison had asserted that the clause added nothing—it referred only to the enumerated powers of Congress, and the power to tax did not extend beyond these. Hamilton, on the other hand, had maintained that the general welfare clause conferred a power separate and distinct from the enumerated powers—that Congress was limited in its power to tax and spend only by what Congress deemed to be the general welfare. Justice Story, observed Roberts, had espoused the Hamiltonian position in his Commentaries, but until now, the view had not been “authoritatively accepted” by the Court. Taking a breath, he continued in a fateful paragraph:

We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of Section 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.(277)

Roberts interjected a few tactful qualifiers: The power invoked by Congress must be truly for the general welfare—that is, the national welfare—and could not affect merely local matters. It could not be exercised, he added in a horrified afterthought, “for the destruction of local self-government in the States.” Not even Hamilton had suggested that, nor had Story ever countenanced the thought. After all, “it hardly seems necessary to reiterate that ours is a dual form of government,” in which the Federal government may exercise only such powers as are expressly conferred upon it.

The qualifiers are forgotten now. In the moment Roberts’ opinion came down, constitutional limitations dissolved into the shapeless mass of a sand castle on a beach, slapped by a passing roll of foam.

But just as a tide stays at its peak for a brief hour, so the Court was to hand down one more decision that limited, for a few years, the expanding Federal authority. In 1935, Congress had passed the Bituminous Coal Conservation Act, in which regulation was attempted of the wages and hours of miners, and the price of soft coal. In Carter vs. Carter Coal Company, on May 18, 1936, the Court in a 5-4 decision applied its Schechter doctrine in reverse: Coal at the mine had not yet entered the current of commerce; it was still at rest. Speaking for the majority, Sutherland agreed that the aims of protecting the health of miners and the comfort of the people doubtless were “objects of great worth.” But he asked himself, “are they an end, the attainment of which has been committed by the Constitution to the Federal government?” He could not agree that they were. Once more, valiant to the end, the Court majority called attention to “the ruling and firmly established principle”

that the powers which the general government may exercise are only those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers.(278)

And Sutherland went on, arguing publicly with the dictum Roberts had laid down just a few months before, dealing with the welfare clause.

The proposition, often advanced and as often discredited, that the power of the Federal government inherently extends to purposes affecting the Nation as a whole with which the States severally cannot deal or cannot adequately deal, and the related notion that Congress, entirely apart from those powers delegated by the Constitution, may enact laws to promote the general welfare, have never been accepted but always definitely rejected by this court.

In plain truth, this very “notion” had been embraced by Roberts in the AAA case, and the reign of Sutherland’s “ruling principle” of the Tenth Amendment was fast ending. Sutherland could add only a valedictory, and he was done: “The States were before the Constitution,” he said defiantly. Their legislative powers “antedated the Constitution.” In all the powers they had reserved to themselves, “they are supreme.”

Every journey to a forbidden end begins with the first step; and the danger of such a step by the Federal government in the direction of taking over the powers of the States is that the end of the journey may find the States so despoiled of their powers, or—what may amount to the same thing—so relieved of their responsibilities which possession of the powers necessarily enjoins, as to reduce them to little more than geographical subdivisions of the national domain.(279)

That was the last of the 5-4 rulings by the conservative majority among the nine old men. “This decision was the high-water mark,” Roberts later remarked.(280) Thereafter the tide ebbed. The Carter decision came down in May of 1936. In February of 1937, Mr. Roosevelt brought forth his court-packing scheme. He proposed that any judge who had reached the age of seventy, and had served ten years on the court, be retired on full pay—but if any judge failed or refused to retire, a new judge should be appointed, up to a total court of fifteen. It was an invitation to six of the nine judges—all but Roberts, Stone, and Cardozo—to get off the bench. Barely three months elapsed before the Court reached another landmark decision, this time in a series of cases upholding the National Labor Relations Act of 1935. But the Court that had stood 5-4 for States’ rights in May of 1936, stood 5-4 for Federal authority in April of 1937. Now the Court jettisoned the doctrines of the Carter case. “How can it be maintained,” asked Hughes, waggling an indignant beard, “that industrial labor relations constitute a forbidden field that Congress may not enter?” To be sure, the authority of the Federal government “may not be pushed to such an extreme as to destroy the distinction . . . between commerce ‘among the several States’ and the internal concerns of a State,” for the distinction between things national and things local “is vital to the maintenance of our Federal system.” But labor relations within a steel company—or within a clothing company or a trailer manufacturing company—did “affect commerce.” Labor strife could in fact impose a burden that might obstruct commerce. Hughes did not propose that the Court “shut our eyes to the plainest facts of our national life, and . . . deal with the question of direct and indirect effects in an intellectual vacuum.”(281)

McReynolds put in a despairing dissent. Van Devanter, Sutherland, and Butler joined him. The majority’s doctrine was subversive of States’ rights. It would mean “serious impairment of the very foundations of our federated system.” But the Court was shifting its direction. One month later, on May 24, the Court through Cardozo took the greatest step yet toward expansion of Federal powers in approval of the Social Security Act of 1935, The tax thus imposed, said the majority, was imposed for the general welfare—and the general welfare was for Congress to define without the Court’s intervention.

Again McReynolds raised his voice: What was it that Chase had said in Texas vs. White in 1869? “The Constitution looks to an indestructible Union composed of indestructible States.” But what was the effect of the majority’s opinion? It “opens the way for practical annihilation of this theory, and no cloud of words or ostentatious parade of irrelevant statistics should be permitted to obscure that fact.”(282) Sutherland and Van Devanter also dissented: The majority’s ruling would deny to the States “that supremacy and freedom from external interference in respect to [their] affairs which the Constitution contemplates.” If the Union were to survive “as the United States, the balance between the powers of the nation and those of the States must be maintained.” And prophetically, they remarked:

There is grave danger in permitting it to dip in either direction, danger—if there were no other—in the precedent thereby set for further departures from the equipoise. The threat implicit in the present encroachment upon the administrative functions of the State is that greater encroachments and encroachments upon other functions will follow.(283)

By this time the tide was running out fast. When the Fair Labor Standards Act came along in 1938, the third gateway of the commerce clause swung to its widest point. Here the court asserted for the Federal government the widest possible control of wages and hours, overtime, working conditions, and the like. In United States vs. Darby, Stone traced at some length, as if to justify his conscience and the Court’s, the growth of the commerce doctrine. The judges were unanimous: The Tenth Amendment was but a “truism.”(284) Any process or occupation necessary or related to the current of interstate commerce henceforth was subject to congressional control. “The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which ihe Constitution places no restriction, and over which the courts are given no control.” “The effect of sustaining the act,” Roberis observed in his lectures at Harvard in 1951, “was to place the whole matter of wages and hours of persons employed throughout the United States, wilh slight exceptions, under a single Federal regulatory scheme and in this way completely to supersede State exercise of the police power in this field.”(285)

The rest of the tale is quickly told. The year following the Darby case saw the court approve the Agricultural Marketing Agreement Act of 1937, by which the farmers were delivered into Federal custody: Congress, it was ruled, plainly had authority to fix a minimum price on milk in Chicago, for “the commerce power is not confined in its exercise to the regulation of commerce among the States—it extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end.” And the Court happily cited John Marshall in McCulloch vs. Maryland to prove it.(286) Almost immediately thereafter, the Court gave its benediction to the Agricultural Adjustment Act of 1938. This extended Federal controls even to wheat or corn consumed on a farm. The judges saw nothing wrong in this: “It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions.” After all, “the stimulation of commerce is a use of the regulating function.”(287) That was the fourth doorway opening there: The stimulation of commerce. No great powers of prophecy are required to foresee that in this fourth gateway, new vistas appear of Federal projects under the commerce clause.