[Here, Klarman advances a similar argument with regard to the Marshall Court's famous Contract Clause decisions in Dartmouth College v. Woodward, Sturges v. Crowninshield, and Green v. Biddle.]
IV. The Supreme Court's Stature
While the "great" decisions of the
Marshall Court probably were a good deal less important than is commonly assumed, the stature of the Supreme Court did increase dramatically under Marshall's leadership, setting the Court well on the path to becoming the sort of formidable institution we recognize today--one with the clout, for example, to intervene in a presidential election and make its ruling stick. n220 This rise in the Court's stature was not inevitable. Indeed, from the perspective of 1800, not many soothsayers would have predicted as much. When John Marshall assumed the Chief Justiceship in 1801, the Court was weak and its immediate prospects were bleak. The Justices had decided relatively few cases in the 1790s. n221 They handled their first big constitutional decision, Chisholm v. Georgia, n222 so maladroitly (in the sense of contravening dominant public opinion) that they were immediately slapped down by enormous majorities in both houses of Congress, which passed the Eleventh Amendment to overrule the decision. n223 The Court's lowly stature and the onerous duties of circuit-riding induced
[*1154] several early resignations from the Court, and President Washington had difficulty finding anyone interested in filling the vacancies. n224 Both Chief Justices John Jay and Oliver Ellsworth were more interested in doing their nation's bidding as overseas ambassadors than attending to their Court duties, and Jay departed the Court in 1795 to become Governor of New York. n225 In declining President Adams's offer to reappoint him Chief Justice in 1801, Jay reminded the President that he had "left the bench perfectly convinced" that a judicial system "so defective" could never "obtain the energy, weight, and dignity which are essential to its affording due support to the national government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess." n226 When Marshall became Chief Justice in 1801, the Jeffersonians were about to assume control of Congress and the presidency, and some form of retribution against Supreme Court Justices was widely predicted. n227 The Jeffersonians accused the Federalist Justices of partisan performances during the Sedition Act prosecutions of Republicans in the late 1790s, and one of the Justices, Samuel Chase, had actively campaigned for Adams in 1800. n228 From the perspective of 1801, it was anything but a sure bet that the Court one day would emerge as a powerful third branch of the national government. n229
Yet by the time of Marshall's death in 1835, the Court's stature had grown tremendously. n230 The astute French observer Alexis de
[*1155] Tocqueville had observed in 1830, no doubt with a bit of exaggeration, that "the peace, the prosperity, and the very existence of the Union are vested in the hands of the seven Federal judges [of the Supreme Court]." n231 By then, the Justices not only had declared the power of judicial review, but had exercised it frequently to invalidate unconstitutional state legislation. n232 The Court had rejected state compact theory and embraced broad conceptions of national power. Perhaps most importantly, the Court, after much controversy, had established itself as the arbiter of conflicts between state and national interests. n233 Just fifteen years after Marshall's death, national leaders, unable to resolve the nation's most contentious political issue--the fate of slavery in the federal territories--delegated the matter to the Court for ultimate resolution. n234 It is difficult to imagine the Jay or Ellsworth Courts being entrusted with such a vital responsibility.
[*1156]
It is not entirely clear how this rise in the Court's stature came about. One possibility is that the power of an institution expands as it is exercised. The Supreme Court did relatively little during its first twenty years, but quite a bit in the decades thereafter. Another possibility is that the
Marshall Court was adept at rendering decisions that earned it more friends than enemies. n235 It is also possible that the Justices were the beneficiaries of some good luck; perhaps people rallied around the Court as the ultimate arbiter of constitutional controversies because they liked the available alternatives less. n236
Whatever the correct explanation, it is conceivable that had the Court not begun exercising the judicial review power when it did, that practice never would have become accepted. n237 Early precedents--in the sense of practices, rather than judicial opinions--mattered a great deal to the subsequent history of the republic. Partly owing to inertia and partly to the reverence manifested by subsequent generations for their Founding Fathers, early precedents, while not completely irreversible, enjoyed substantial staying power. George Washington's decision to stand down from the presidency after two terms, for example, set a precedent followed by every subsequent president for a century and a half. n238 Likewise, the Jay Court's refusal to issue advisory opinions has stuck ever since, even though the text of the Constitution does not plainly forbid that practice. n239 Had the Supreme Court not begun to exercise the judicial review power with some frequency--beginning in the 1810s--one can imagine that state of affairs becoming entrenched as well.
Historians and legal scholars have not adequately explained the growth in the Court's power and stature during Marshall's Chief Justiceship. I hope to shed some light on this subject in the final Part of this Article. First, I consider the extent to which the growth in the Court's stature was a product of decisions consciously made
[*1157] by Marshall and his colleagues. Second, I consider the extent to which this development was fortuitous.
A. Conscious Design
As many constitutional historians and biographers have noted, Chief Justice Marshall was largely responsible for abolishing the practice of seriatim opinions and ensuring that the Court generally spoke with a single voice. n240 Marshall could not control whether the President enforced his rulings or whether the country accepted them, but he could and did control the front displayed by the Court to the outside world. While measuring the precise significance of the practice of majority opinions is impossible, it seems plausible that an institution speaking with a unitary voice will command greater respect than one speaking with multiple voices. The Framers capitalized on this basic insight when they created a unitary executive, rather than the sort of plural executives employed by many state constitutions in the Founding era. n241 Jeffersonian critics of the
Marshall Court, including Jefferson himself, likewise appreciated the significance of the Court's speaking with a single voice. They constantly assailed this practice of "cooking up opinions in conclave," n242 which arguably emboldened individual Justices by diffusing responsibility for controversial decisions ("smothering evidence," as Jefferson put it). n243 Moreover, the practice of issuing a single unanimous opinion for the Court created the illusion that
[*1158] the other Justices concurred even in the extraneous dicta that rendered decisions like McCulloch so controversial. n244 Critics of the
Marshall Court even went so far as to advocate a constitutional amendment that would have required the Justices to return to seriatim opinions. n245 Marshall not only ensured that the Court spoke with one voice, n246 but also that the voice generally was his. In his first decade as Chief Justice, Marshall wrote the opinion in 147 of 171 cases decided by the Court, including all of the important ones. n247 This was the period when the Court was most at risk of Jeffersonian political retribution, and its future status was most uncertain. n248 When Justice Johnson, upon joining the Court in 1804, evinced some inclination to voice his own opinions separately, his colleagues firmly dissuaded him from breaching the Court's united front. n249
Marshall's brilliant political gamesmanship also contributed to the growth in the Court's stature. It is not easy for an institution starting out with little power to acquire more. Cases like Marbury v. Madison presented Marshall with fairly unattractive alternatives. One option was to recognize the political reality that Secretary of State Madison probably would defy a direct order to deliver Marbury's commission, and thus to dismiss the case. This would have made the Court appear craven and impotent. A second option was to ignore political reality, order the Secretary of State to deliver the commission, and then watch him defy the Court's mandate. n250
[*1159] This would have made the Court appear bold (or perhaps reckless) and impotent. Neither option was particularly attractive. Marshall invented a third option out of whole cloth. He would brand the President and his Secretary of State as vile lawbreakers and insist that a court had the power to command them to perform ministerial duties; but then he would refuse to issue any order that might be defied, on the ground that the statute purporting to grant the Court jurisdiction over this case was unconstitutional and thus must be invalidated under the judicial review power (which the Court never before had exercised). This was a brilliant escape from a perilous situation. n251 Marshall boldly lectured the President about his accountability to law, but then declined to issue any order that might have been defied. Jefferson fumed, but had no direct means of response.
Marshall followed precisely the same strategy in Cohens v. Virginia. n252 Virginia prosecuted the Cohen brothers for selling lottery tickets in violation of Virginia law. Their defense was that the lottery tickets had been issued pursuant to a congressional statute authorizing a lottery in the District of Columbia, which trumped contrary Virginia law under the Supremacy Clause. Virginia denied the Supreme Court's jurisdiction over the Cohens' appeal, both because state sovereignty did not permit the courts of one sovereign power (the federal government) to examine the rulings of the courts of another sovereign power (the state of Virginia), and because the Eleventh Amendment protected states from being forced to make appearances against their will in federal court. Marshall rejected both of Virginia's arguments--Martin v. Hunter's Lessee
[*1160] already had rejected the first argument five years earlier--yet on the merits he ruled for Virginia, on the ground that Congress had not intended the statute authorizing a lottery in the District of Columbia to have extraterritorial effect. This was a debatable reading of the statute, n253 much as Marshall's interpretation of Section 13 of the 1789 Judiciary Act in Marbury had been questionable. Yet this legal maneuver enabled Marshall to have his cake and eat it too: He could reject Virginia's state sovereignty arguments without issuing an order that the state probably would have defied. n254
A third conscious strategy employed by Marshall to increase the Court's stature was to leverage his most controversial claims about national power with quite uncontroversial holdings. n255 This technique tends to undercut potential critics. n256 What is the point of ranting and raving against a decision, when one has no quarrel with its holding? Thus, in McCulloch, the holding that the Necessary and Proper Clause empowered Congress to charter a bank was quite unexceptionable in 1819. As we have seen, even critics of McCulloch tended to concede the point. n257 What was controversial about the case was Marshall's repudiation of state compact theory and his latitudinarian conception of national government power. Critics did assail these aspects of the decision, n258 but it seems likely
[*1161] that the severity of their criticism was somewhat dampened by the uncontroversial nature of McCulloch's holding.
Gibbons v. Ogden n259 is another example of this strategy. The Court there upheld the federal coasting trade statute and ruled that it preempted a New York law creating a steamboat monopoly. The federal coasting trade statute was about as uncontroversial an exercise of the Commerce Clause power as one can imagine; no one could have doubted its constitutionality. n260 Moreover, the invalidation of New York's unpopular steamboat monopoly generally was acclaimed, both in New York (where public opinion had been pressuring the legislature to rescind the monopoly) and in neighboring states (where legislatures had begun to adopt retaliatory trade measures against New York). n261 Thus, the holdings of Gibbons were not only uncontroversial, but actually popular. Marshall leveraged the holdings in support of some extraordinary dicta--that the power of Congress to regulate commerce "among the several States" included regulating commerce internal to a state if it "affected the States generally." n262 That view was extremely controversial, especially among Southerners, who feared the implications for slavery of a broad congressional Commerce Clause power. Yet critics probably found it more difficult to mobilize against a decision with such an uncontroversial holding.
Another time-tested strategy for conserving the Court's institutional authority is using constitutional interpretation to suppress outlier practices, rather than invalidating laws that enjoy widespread or even majority support. n263 Many of the
Marshall Court's most famous decisions involve suppression of isolated practices. n264
[*1162] Fletcher v. Peck, n265 the first case in which the Court invalidated a state law as unconstitutional, involved a challenge to a Georgia statute that purported to rescind a legislative land grant from the preceding year. n266 Virtually every Georgia legislator who had voted for the land grant had been bribed by the purchasers. n267 State legislatures around the turn of the century did not routinely rescind land grants, and by 1810, national opinion, including within the dominant Jeffersonian Republican Party, generally endorsed congressional compensation for third-party claimants of the Yazoo lands. n268 Thus, Fletcher was not an unpopular decision, except among some of the old guard Republicans, who rejected the principle of compensating the beneficiaries of fraudulent practices. n269
United States v. Peters n270 is another example of the Supreme Court announcing an important constitutional principle in a case where most of the nation supported the Court's suppression of an outlier state's defiant practices. Pennsylvania refused to comply with a lower federal court judgment ordering it to pay a private party (Olmstead) the proceeds of a prize captured during the Revolutionary War. The Supreme Court ordered Pennsylvania to comply with the judgment, and when the governor called out the state militia to block enforcement of the Court's ruling, President Madison warned him that the nation's chief executive was constitutionally obliged to enforce the Court's decree. n271 Most of the nation
[*1163] sided with the Court and the President against Pennsylvania's effort to nullify a federal court ruling. n272
As a final illustration of this suppression-of-outliers phenomenon, consider Green v. Biddle. n273 As we have seen, n274 the Court in Green rendered a novel interpretation of the Contract Clause, n275 extending it to cover interstate compacts, and made itself enormously unpopular in Kentucky by invalidating that state's occupying-claimant law. But Tennessee was the only other state whose occupying-claimant laws arguably violated an interstate compact (with North Carolina) n276--and thus most of the nation probably would have endorsed the Court's refusal to permit Kentucky to deprive absentee owners of full title to their land.
Chief Justice Marshall skillfully employed one final technique to conserve the Court's scarce institutional authority at a time when it remained vulnerable to political annihilation. He knew when to duck. As Marshall himself once noted, he was "not fond of butting against a wall in sport." n277 We already have seen that Marbury must be considered in tandem with Stuart v. Laird, decided just six days later. n278 While the former declared the power of judicial review, the latter declined to exercise it in a case where some of the Justices plainly believed that the law at issue was unconstitutional. With
[*1164] impeachment threats looming on the horizon, the Court simply could not challenge Congress by invalidating the 1802 Repeal Act. Such a ruling surely would have unleashed upon the Court the full fury of the Jeffersonians.
Similarly, many scholars have identified a tactical "retreat" by the
Marshall Court during its final decade. n279 As already noted, several Contract Clause decisions between 1827 and 1831--Ogden v. Saunders, Providence Bank v. Billings, and Hawkins v. Barney's Lessee--are susceptible to the interpretation that the Court was retreating from the implications of earlier decisions. n280 Similarly, in Willson v. Black Bird Creek Marsh Co., n281 the Court rejected the broadest implications of Gibbons v. Ogden and sustained a state law authorizing the damming of a river in order to drain a surrounding marsh, which had the effect of obstructing passage on a navigable waterway by a shipowner possessed of a license to engage in the federal coasting trade. n282 Labeling these (and other) decisions a "retreat" is contestable. To prove such a claim, one would need to know the unknowable--that is, how the
Marshall Court would have resolved these issues in the absence of political pressure. Since none of these decisions flatly overruled earlier cases, but only rejected their broadest implications, the retreat hypothesis is merely plausible, not proven. Still, it is widely accepted by scholars, and, if accurate, provides several illustrations of how Marshall and his colleagues were prepared to make concessions to political reality by avoiding controversial rulings. n283
B. Fortuity
While Marshall and his brethren made many tactical decisions that contributed to the enhancement of the Court's stature, they
[*1165] also were the beneficiaries of some good fortune. Several developments beyond their power to control enhanced the status and prestige of the Supreme Court. The following enumeration is meant to be illustrative rather than exhaustive.
Judicial review might have been a good deal more controversial when Marbury claimed it for the Court, had the Jeffersonians not already committed themselves to the practice in the 1790s. Given the tremendous suspicion of federal courts evinced by the Antifederalists (and later the Jeffersonian Republicans), n284 it was not inevitable that they would accept those courts exercising a power whose legitimacy remained contested in the early years of the Republic. The federal courts were, from the beginning, stocked exclusively with Federalists, and the sort of person likely to become a federal judge, wholly apart from partisan affiliation, probably was inclined to sympathize with broad conceptions of national power. n285 In light of these considerations, one might have predicted that Jeffersonians would fiercely contest early exercises of the judicial review power by federal courts. But they did not. One possible explanation is that they were misled by the first exercise of the power by Supreme Court Justices sitting on circuit into believing that judicial review was more likely to curb than to enhance the power of the national government. The Antifederalists had warned that the federal courts would possess incentives to expand the power of the national legislature at the expense of the states--concretely, because the "arising under" grant of jurisdiction in Article III linked together the scope of federal legislative and judicial power. n286 Yet, in Hayburn's Case in 1792, the Justices
[*1166] invalidated, or at least threatened to invalidate, a federal law. n287 It was Federalists who criticized this decision, with some apparently even making vague threats about impeaching the Justices. n288 Republicans, conversely, heaped praise upon the decision and expressed the hope that the Court might next take on the Bank. n289
The Jeffersonians probably made a miscalculation here, wrongly assuming that Hayburn's Case would prove typical of most instances of judicial review by federal courts. What they failed to appreciate was that while Supreme Court Justices have a strong incentive to invalidate federal legislation that invades the sphere of the federal judiciary (as in Hayburn's Case or Marbury), their incentives probably cut in the opposite direction when federal legislation invades the province of the states rather than of the federal courts (as in McCulloch). In other words, the Antifederalists probably were right to be suspicious of the federal judiciary. Chisholm v. Georgia should have confirmed that, n290 but Hayburn's Case may have misled Republicans into thinking that federal courts actually might curb federal legislative power. Thus, they embraced judicial review at a moment in history when its fate remained uncertain and when their opposition might have stymied its general acceptance. n291 By the time of Marbury, then, both political parties already had committed themselves to supporting judicial review. n292 Had Republicans not done so in the 1790s, Marshall's pronouncement of the judicial review power in 1803 might have been far
[*1167] more controversial, and the Jeffersonians might well have had both the clout and the inclination successfully to contest the matter.
Next, the failure of the Republican effort to remove Justice Samuel Chase from office in 1804-1805 was a pivotal event in the history of the
Marshall Court. The Jeffersonians pursued Justice Chase principally because of the partisan spirit with which he had presided over Sedition Act (and other political) trials during the Adams administration, his appearance on the hustings for President Adams in the 1800 presidential election, and his blatantly political grand jury charges in the early years of Jefferson's first administration, including statements directly criticizing Republican political policies. n293 Justice Chase was impeached by the House in 1804, then tried by the Senate in 1805. n294 It was widely predicted that if Justice Chase were successfully removed from office, Marshall and perhaps the rest of the Court would be next. n295 Plainly feeling the pressure, Marshall suggested at this time that Congress, instead of impeaching the Justices, ought to be given appellate jurisdiction over the Supreme Court. n296 Clearly, the fate of the Chase impeachment had enormous implications for the future of the
Marshall Court and judicial review. n297
[*1168]
In 1805, the Senate acquitted Justice Chase of all charges, though only narrowly on the most serious ones. n298 Some historians have explained (and justified) the acquittal on the ground that Justice Chase was being persecuted for his political opinions, which should not be an appropriate basis for impeachment. n299 Yet, House Republicans had voted along straight party lines to impeach Justice Chase. Had Republicans voted the same way in the Senate, they had the two-thirds majority necessary for removing Justice Chase from office. The most persuasive explanation for Justice Chase's acquittal has nothing to do with Republican qualms about evicting a Justice from office for possessing "wrong" political opinions. Rather, at least six Republican senators voted against each article of impeachment because of internal party squabbles that motivated them to sully the reputation of Speaker of the House John Randolph, who was a Republican and the leader of the prosecution team in Justice Chase's Senate trial. n300 Thus, Justice Chase was the beneficiary of some extraordinary luck. Were it not for these internal Republican Party schisms--which had nothing to do with the merits of the Chase impeachment--Justice Chase likely would have been removed from office, and John Marshall might well have been next in line. The very fate of the Supreme Court then would have hung in the balance. Instead, with the failure of the Chase impeachment, this particular weapon for restraining federal judges
[*1169] atrophied. n301 President Jefferson, who had instigated the Chase impeachment, n302 concluded after its failure that impeachment was "not even a scare-crow" n303 and that it was "a bugbear which they [the judges] fear not at all." n304 More generally, the idea of removing federal judges from office because they possessed erroneous political opinions--which many Republicans had explicitly endorsed before and during the Chase impeachment n305--gradually disappeared. Without the demise of that view, it is hard to imagine federal judges developing the independence from politics that meaningful judicial review requires. n306
Another important factor in the growth of the
Marshall Court's stature was the general concordance of views shared by the Justices. n307 We have seen how Marshall's ability to ensure that the Court spoke with a single voice--usually his--was important, especially in the early years of his tenure, when the Court was weakest and most susceptible to political attack. n308 But Marshall probably was able to pull off this feat only because the Justices shared a general political and judicial philosophy. n309 Concretely, had any of the Justices been genuine states' righters, perhaps of the ilk of Spencer
[*1170] Roane of the Virginia Court of Appeals, n310 it is hard to see how the Court could have achieved unanimity in cases like McCulloch, Cohens, or Gibbons. n311 It was not inevitable that all the Justices would share Marshall's commitment to broad national legislative and judicial power, and the Chief Justice had no influence over the appointments process that produced his colleagues on the Court. Indeed, it is an interesting and relatively unexamined question of
Marshall Court history as to why Presidents Jefferson's and Madison's five appointments to the Court embraced constitutional views regarding national power more in line with those of Marshall than of the presidents who appointed them. n312
Any answer to this question necessarily is speculative, but here are two possibilities. First, Jefferson may not have tried very hard to appoint states' righters to the Court, both because when he occupied the presidency he seemed less worried about a powerful national government n313 and because, during Jefferson's tenure in the White House (1801-1809), the
Marshall Court did nothing to indicate that judicial review would be exercised in favor of expansive
[*1171] national authority and restricted state power. n314 Within several years of departing the presidency, Jefferson would become virtually apoplectic over the
Marshall Court's performance. He came to regard the Court as the principal threat to the Republic's survival--a "subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric." n315 Jefferson complained bitterly that the Republican appointees on the Court had become pliant tools in Marshall's hands. n316 Accordingly, Jefferson urged his successor, Madison, to appoint persons of "unquestionable republican principles" to the Court. n317 Yet, as president himself, Jefferson had done nothing to guard against the appointment of Justices who shared Marshall's nationalist views, or at least were content to follow his lead. n318 Madison, in turn, was never as concerned about an overreaching national government as was Jefferson, n319 and in the years approaching and during the War of 1812, had his own reasons for embracing
[*1172] broad national authority. n320 Thus, for example, Madison was willing to appoint Joseph Story, who ultimately outdid even Marshall in his nationalism, notwithstanding Jefferson's objection that Story was "unquestionably a tory." n321
Second, it is possible that the sort of person who possessed the qualifications necessary for appointment to the Supreme Court early in the nineteenth century was more likely than the average citizen to support a powerful national government. Prospective Justices were likely to be either persons of national reputation (who, in turn, were likely to have performed some sort of national service to earn that reputation--an experience that might incline them to respect national authority) n322 or successful commercial lawyers, who also evinced a natural bias in favor of a powerful national government. n323 This is not to say that Jefferson or Madison could not have found states' righters to appoint to the Court had they been intent on doing so. It is to say that within the pool of prospective Court appointees, there was a systemic bias in favor of nationalist views. n324
In the quest for increased stature, the
Marshall Court benefited from another fortuitous circumstance as well--the inability of aggrieved states to coordinate their opposition to the Court. Between 1809 and 1824, the
Marshall Court rendered decisions that made it
[*1173] distinctly unpopular in a majority of states in the Union. n325 Indeed, on various occasions, Court decisions were being defied in at least seven states: Pennsylvania, New Jersey, Virginia, Kentucky, South Carolina, Georgia, and Ohio. n326 Had these states coordinated their individual resentments toward the Court into a unified, states' rights opposition, Congress might have acted to curb the Court's power. But most states focused upon one Court ruling at a time, and a loser in one decision might emerge the winner next time around. n327 For example, when the Pennsylvania legislature in 1809-1810 tried to rally opposition to the Supreme Court after Peters, n328 proposing a constitutional amendment to establish an "impartial tribunal to determine disputes between the General and State Governments," n329 the Virginia legislature unanimously resolved that the Constitution already provided such an impartial tribunal in the Supreme Court. n330 Between 1816 and 1821, it was Virginia's turn to object vociferously to the rulings in Martin, McCulloch, and Cohens, which rejected various permutations of state sovereignty arguments. Now, Virginians denied that the Supreme Court could be a neutral arbiter of disputes between the state and national governments, and Virginia representatives in Congress supported repeal of Section 25 of the 1789 Judiciary Act, which was the practical mechanism for enforcing federal supremacy upon the states. n331 Yet, just two years after Cohens, when the Court in Green v. Biddle sided with Virginia against Kentucky in their dispute over land titles, the latter's effort to rally states' rights opposition to the Court was greeted with stony indifference in Virginia, which now defended the Justices. n332 Kentucky was no more consistent. After Green, Kentucky's representatives in Congress introduced a constitutional
[*1174] amendment that would have authorized appeals from the Supreme Court to the Senate in cases of dispute between the state and national governments. Yet, when South Carolina nullified the federal tariff in 1832, reasoning that states must be empowered to interpret the federal constitution for themselves since federal courts were not neutral arbiters, Kentucky responded by insisting that the Supreme Court was indeed the final interpreter of the Constitution's meaning. n333 Had individual aggrieved states been able to see beyond their particularistic concerns, an ideological states' rights opposition to the Court might have developed--an opposition which possibly could have secured congressional curbs on the Court's power. n334 By the late 1820s, the Jacksonian Democratic Party would provide the vehicle for organizing such a states' rights opposition, but the absence of such a political organization during the heyday of the
Marshall Court's nationalism may have enabled the Court to escape unscathed at a time when its decisions were generating the most intense opposition in particular states. n335
Finally, the Court benefited enormously from an episode that was entirely beyond its power to control--South Carolina's abortive effort at nullification in 1832-1833. To fully appreciate how and why this episode redounded to the Court's benefit, we must begin by considering the brewing controversy between the Court and the state of Georgia over Cherokee Indian removal in the early 1830s. n336 White Georgians had been casting a covetous eye on Cherokee lands within the state for some time, n337 but after the election of a President sympathetic toward Indian removal in 1828 and
[*1175] the discovery of gold on Cherokee land in 1829, the state's determination to assert sovereignty over Cherokee Indians could not be stymied. Unfortunately for Georgia, a federal treaty of 1791 guaranteed to the Cherokees "all their lands not . . . ceded" in that treaty. n338 In 1829, the Georgia legislature, in defiance of the federal treaty, passed statutes asserting sovereignty over Cherokee lands, n339 leading to three Supreme Court cases between 1830 and 1832.
In the case of Corn Tassels, Georgia asserted sovereignty over a Cherokee Indian by prosecuting him in state court under state law for murdering another Cherokee. When the Supreme Court took jurisdiction of the case to consider whether Georgia's action violated the federal treaty, state officials defied the Court by executing Corn Tassels before his case could be heard in Washington. n340 The following year, the Court rejected on jurisdictional and justiciability grounds a suit by the Cherokee Nation against the state of Georgia seeking to enjoin the state's assertion of sovereignty over the Cherokees. n341 Finally, in 1832, the Court in Worcester v. Georgia n342 heard an appeal from a criminal prosecution of two Christian missionaries who were convicted of violating Georgia's new law requiring whites living on Cherokee land to obtain a license from the state. This time, the Court plainly had jurisdiction and the controversy was justiciable; on the merits, the Justices invalidated the state law as inconsistent with the federal treaty.
Georgia had made it crystal clear that it would defy the Court's ruling. n343 Whether President Jackson would enforce the Court's decision against a recalcitrant Georgia was highly uncertain. n344
[*1176] Jackson plainly agreed with Georgia on the merits of Indian removal, n345 and most Democrats saw in the Cherokee litigation the machinations of Jackson's political enemies. n346 Not coincidentally, the lawyers representing Cherokee interests in the Supreme Court were some of Jackson's leading political opponents in 1832. n347 While Jackson may never have uttered the famous words--"John Marshall has made his decision, now let him enforce it" n348--there was ample reason to conclude early in 1832 that the President would not coerce Georgia into complying with the Court's ruling in Worcester. n349 Certainly, the Cherokees' lawyers and Justice Joseph Story were not expecting the President to back up the Court. n350 Had Georgia's defiance, with the President's connivance, come to fruition, it would have left the Court, already bruised and battered from its numerous confrontations with the states over the preceding decade, looking impotent and irrelevant.
[*1177]
Then, the nullification crisis in South Carolina changed everything. n351 The Supreme Court decided Worcester in March of 1832 and then went out of session for the remainder of the year. Until the Georgia court that had convicted the missionaries actually defied Worcester, the Justices would have no occasion to issue a final mandate commanding the state to comply. Thus, technically, there would be no order for the President to enforce until early 1833 (when the Court would begin its next term). n352 A special convention in South Carolina nullified the federal tariff in November 1832. President Jackson responded with a proclamation that rejected the constitutionality of nullification and secession (which South Carolina also was contemplating) and threatened to use military force to compel South Carolina's compliance with federal law. n353 Jackson's decision to take a strong stand against South Carolina forced his hand with regard to Georgia. n354 South Carolinians protested at the hypocrisy of the President insisting that he had no choice but to use military coercion to enforce a federal statute in South Carolina when he showed no inclination to enforce a federal court ruling in Georgia. n355 In the meantime, Georgians worried that events in South Carolina might force the President, for the sake of consistency, to take a tough stand against Georgia, which he otherwise had little inclination to do. Under these circumstances, both President Jackson and state officials in Georgia had a strong incentive to negotiate a settlement of the Worcester case, which would enable
[*1178] Georgia to save face while obviating the need for the President to enforce the Supreme Court's forthcoming mandate. n356 After prolonged negotiations, Georgia's governor released the missionaries from prison, thus mooting the case. n357 Worcester was not defied, and the Court was able to save face.
More importantly, the national backlash against South Carolina's reckless invocation of nullification and secession redounded to the benefit of the Court. n358 Nullification and secession were grounded in compact theory--the notion that the Constitution was a product of a compact among sovereign states rather than of the will of a national People. According to compact theory, when the parties to a compact disagree about the meaning of its terms, and there is no neutral arbiter to adjudicate their dispute, the parties must determine for themselves the compact's meaning, whether it has been breached, and what is the appropriate remedy. n359 Critically, compact theorists denied that the federal courts could be neutral arbiters of disputes between the state and national governments, because they were part of the latter and possessed concrete incentives to side with it in adjudicating such disputes. n360
[*1179]
When President Jackson responded to South Carolina's resolution of nullification, he rejected the constitutionality of the practice, proclaimed the permanence of the Union, and defended the Supreme Court as the final arbiter of the Constitution's meaning. n361 Jackson was a moderate states' rights Democrat. n362 He did not reject compact theory entirely, n363 and he repudiated Marshallian notions of national power in his positions on the Bank, internal improvements, and Indian removal. n364 There is little reason to believe that he would have rejected the compact theorists' notion that the Supreme Court was not a neutral arbiter of state-federal disputes, had it not been for the use to which the South Carolinians were putting this insight. No other state supported South Carolina's effort at nullification in 1832. n365 Many Jacksonians reacted against South Carolina's extremism, as their leader did, by denying the theoretical underpinnings of nullification--the notion that since the federal courts were not neutral arbiters of the Constitution's meaning, states must interpret the document for themselves. Suddenly in 1832, the Court's role as final arbiter looked pretty good to anyone who thought the attempt at nullification by South Carolina hotheads was a formula for anarchy. n366
Evidence that the Court was the principal beneficiary of the national backlash against South Carolina's extremism appears in the debates over the Force Bill that Congress was considering early in 1833. Just two years earlier, Congressmen had made a serious effort to repeal Section 25 of the 1789 Judiciary Act, n367 which empowers the Court to hear certain appeals involving federal law
[*1180] issues from the state courts--"the only defensive armor of the Federal Government," according to James Madison. n368 Now, Congressmen praised the Court as the trustworthy final arbiter of the Constitution's meaning and hailed Section 25 as the "sheet anchor of the Constitution." n369 The federal judiciary emerged as the big winner from the nullification controversy in more concrete ways as well. Provisions in the Force Act granted federal courts for the first time the authority to issue writs of habeas corpus on behalf of persons held in state prison for enforcing federal law. n370 Congress further expanded the jurisdiction of federal courts by authorizing removal from state court of lawsuits brought against individuals seeking to enforce the federal tariff. n371 Both of these jurisdictional expansions were directly responsive to South Carolina statutes designed to implement nullification by targeting federal customs officers who persisted in enforcing the federal tariff in the face of South Carolina's purported nullification of it. n372
In sum, as of early 1832, the Court appeared to have reached a new low point. n373 Over the preceding five years, political pressure apparently had induced the
Marshall Court to retreat in several of its constitutional rulings, n374 and in the one area where it had refused to back down, its decision was about to be defied by the state of Georgia, possibly with the blessing of President Jackson. n375 That same year, Jackson in his bank veto message had questioned the Court's broad interpretation of congressional power in McCulloch and denied that the Supreme Court was the sole expositor of the
[*1181] Constitution's meaning. n376 In 1831, Chief Justice Marshall had expressed anxiety about retiring from the Court, for fear that President Jackson would appoint a nullifier in his place, n377 and the following year he had remarked to Justice Story that he was "yielding slowly and reluctantly to the conviction that our constitution cannot last." n378
By early 1833, however, the Court was riding the crest of a nationalist wave produced by the public backlash against nullification. n379 Congress had bestowed upon the federal judiciary its first significant jurisdictional expansion in years, and both Congress and the President were celebrating the Supreme Court as the ultimate arbiter of the Constitution's meaning. Chief Justice Marshall and Justice Story, who just a year earlier had feared for the Union's survival owing to the President's apparent complicity with nullifiers, now appeared as honored guests at the White House, where they shared a glass of wine with the President. n380 The Court's status had been greatly enhanced, through absolutely no doing of the Court.
Thus, the most important historical contribution of the
Marshall Court consisted less of particular momentous rulings than of a rise in the Court's stature. Marshall's brilliant political gamesmanship contributed in several distinct ways to the Court's enhanced standing. Yet, many of the circumstances that enabled the
Marshall Court to put itself on the map were entirely fortuitous.
Conclusion
Supreme Court decisions rarely matter as much as is conventionally assumed. Brown v. Board of Education did not create the civil rights movement. Women in most of the United States almost certainly would enjoy some form of abortion right even had the Court never decided Roe v. Wade. Marbury v. Madison did not
[*1182] create the judicial review power, and McCulloch v. Maryland was not responsible for the United States developing into a nation, as opposed to a mere confederation of states. The Supreme Court is too parasitic on dominant public opinion to play such an instrumental role in charting national policy.
Yet it would be equally mistaken to assume that Supreme Court decisions do not matter at all. The Court's constitutional rulings frequently produce small but real changes in social practices. While Brown had almost no impact on school segregation in the South, cities in the border states complied with the Court's mandate with impressive speed. n381 Smith v. Allwright, n382 the most important of the Court's white primary decisions, produced a political revolution in the urban South by inspiring a dramatic increase in black voter registration. n383 Under the right circumstances, the Court's rulings can be even more consequential. Bush v. Gore, n384 for example, immediately terminated the presidential election controversy of 2000. In addition, Supreme Court rulings often produce unpredictable backlash effects. In the same way that Brown mobilized southern whites to resist further changes in the racial status quo, and Roe v. Wade inspired right-to-lifers to organize politically against abortion, McCulloch v. Maryland may well have mobilized a states' rights opposition to the nationalist principles articulated by the
Marshall Court.
It is an interesting and relatively underexplored question why the belief persists that Supreme Court decisions are more consequential than they plausibly could be. One possibility is that lawyers and law professors believe this, but the rest of the world does not. For example, Eric Foner, the eminent nonlegal historian, tells his magisterial "story" of American freedom with scarce reference to Supreme Court decisions. n385 Similarly, nonlegal historians
[*1183] in recent years generally have traced the origins of the civil rights movement to the New Deal or World War II, n386 while most judges, lawyers and law professors have continued to fixate on Brown. n387 Perhaps it is natural that law professors, who study, teach, and write about Supreme Court decisions for a living, would be inclined to assume that those decisions have dramatic consequences in the world. n388
Another possibility is that Court decisions are salient events and that people naturally tend to ascribe causal responsibility to forces of which they are conscious. Thus, for example, participants in the 1960s civil rights movement were far more likely to point to Brown or the lynching of Emmet Till as the reasons for their participation in civil rights protest activity than to background forces such as urbanization, industrialization, demographic shifts, rising black political power, increasing education levels among blacks, and so forth. n389 It is undeniable that these background forces created an environment in which civil rights demonstrations were possible, yet because these forces operate in the background rather than at the
[*1184] level of individual consciousness, their importance is slighted when people are asked to attribute causal responsibility. This phenomenon of relative salience may help explain why legal historians account for the growing ascendancy of nationalist principles early in the nineteenth century by pointing to McCulloch rather than, say, to the growing satisfaction of Northerners with the Union, as they came to achieve both majority status and extraordinary economic prosperity within it. Similarly, Dartmouth College and the other Contract Clause cases are more salient events than the background forces that made capitalist expansion possible in the early nineteenth century--significant accumulations of private capital, technological advance, the transportation revolution, stable government, and so forth--and thus have received more than their fair share of causal credit.
Whatever the correct explanation for this cognitive bias toward exaggerating the causal responsibility of Supreme Court decisions, legal historians should be alert to it. We need to get away from the idea that the Supreme Court is the center of the causal universe and seek more nuanced and plausible understandings of how and why Court decisions make the difference that they do.
FOOTNOTES:
n1 347 U.S. 483 (1954). On the contributions of Brown to the 1960s civil rights movement, compare Gerald N. Rosenberg, Brown Is Dead! Long Live Brown!: The Endless Attempt to Canonize a Case, 80 Va. L. Rev. 161 (1994) (giving Brown almost no credit) with David J. Garrow, Hopelessly Hollow History: Revisionist Devaluing of Brown v. Board of Education, 80 Va. L. Rev. 151 (1994) (tremendous credit) and Michael J.
Klarman, Brown v. Board of Education: Facts and Political Correctness, 80 Va. L. Rev. 185 (1994) (indirect and moderate credit).
n2 410 U.S. 113 (1973). On the importance of Roe, compare Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 178-84 (1991) (arguing that legislatures were liberalizing abortion rights independently of Roe) with David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade 482-93 (1994) (arguing that the abortion rights movement had stalled in the political arena by the early 1970s and that Roe rescued it).
n3 370 U.S. 421 (1962). For widespread defiance of Engel, see Frank J. Sorauf, The Wall of Separation: The Constitutional Politics of Church and State 296-300 (1976); H. Frank Way, Jr., Survey Research on Judicial Decisions: The Prayer and Bible Reading Cases, 21 W. Pol. Q. 189 (1968). On the general subject of the consequences of Supreme Court decisions, see, e.g., Leveraging the Law: Using Courts to Achieve Social Change (David A. Shultz ed., 1998); Stephen L. Wasby, The Impact of the United States Supreme Court: Some Perspectives (1970).
n4 The leading exception to the statement in the text is the excellent doctoral dissertation of Dwight Wiley Jessup, Reaction and Accommodation: The United States Supreme Court and Political Conflict 1809-1835 (1987).
n5 5 U.S. (1 Cranch) 137 (1803).
n6 17 U.S. (4 Wheat.) 316 (1819).
n7 17 U.S. (4 Wheat.) 518 (1819).
n8 22 U.S. (9 Wheat.) 1 (1824).
n9 17 U.S. (4 Wheat.) 122 (1819).
n10 21 U.S. (8 Wheat.) 1 (1823).
n11 Jethro K. Lieberman, Milestones! 200 Years of American Law: Milestones in Our Legal History, at vii (1976).
n12 Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 14-15 (1962).
n13 Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law 47 (1996); see also Mark A. Graber, Federalist or Friends of Adams: The
Marshall Court and Party Politics, 12 Stud. Am. Pol. Dev. 229, 261-62 (1998) (calling Marbury "a precedent of the highest importance"); William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L.J. 1, 2 (noting that "of all [Marshall's] significant contributions to our constitutional history, none has been more acclaimed or seems more secure as enduring precedent than his decision in Marbury v. Madison").
n14 See, e.g., Mark A. Graber, The Problematic Establishment of Judicial Review, in The Supreme Court in American Politics: New Institutionalist Interpretations 28, 34 (Howard Gillman & Cornell W. Clayton eds., 1999) (noting that "judicial review did not need to be legally established in 1803"); see also 2 George Lee Haskins & Herbert A. Johnson, History of the Supreme Court of the United States: Foundations of Power: John Marshall, 1801-15, at 190 (1981) (stating that "the idea of judicial review was hardly a new one when Marbury was decided").
n15 See, e.g., Sylvia Snowiss, Judicial Review and the Law of the Constitution 13-44 (1990); Leonard W. Levy, Judicial Review, History, and Democracy: An Introduction, in Judicial Review and the Supreme Court 1, 10 (Leonard W. Levy ed., 1967) (noting that judicial review in 1787 "was nowhere established, indeed . . . it seemed novel, controversial, and an encroachment on legislative authority"); William E. Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitutional Theory in the States, 1790-1860, 120 U. Pa. L. Rev. 1166, 1168 (1972) (stating that "while there was substantial support for judicial review in the 1780's, there was also substantial opposition"). But cf. P. Allan Dionisopoulos & Paul Peterson, Rediscovering the American Origins of Judicial Review: A Rebuttal to the Views Stated by Currie and Other Scholars, 18 J. Marshall L. Rev. 49, 62 (1984) (arguing that "political leaders from the founding era . . . were almost unanimously in favor of the doctrine of judicial review").
n16 See 1 Julius Goebel, Jr., History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, at 125-42 (1971); Charles Groves Haines, The American Doctrine of Judicial Supremacy 88-121 (2d ed. 1959); Louis Boudin, Government by Judiciary, 26 Pol. Sci. Q. 238, 244-47 (1911).
n17 Snowiss, supra note 15, at 38-40; see Edward S. Corwin, The Establishment of Judicial Review, 9 Mich. L. Rev. 102, 118-20 (1910); Ralph A. Rossum, The Courts and the Judicial Power, in The Framing and Ratification of the Constitution 222, 233 (Leonard W. Levy & Dennis J. Mahoney eds., 1987); see also Levy, supra note 15, at 2 (asserting that "history has not really settled whether judicial review was originally intended, because decisive evidence cannot be marshalled to prove what the framers had in mind"). But cf. Dionisopoulos & Peterson, supra note 15, at 58 (stating that "to the extent that judicial review was discussed [at the Constitutional Convention], the power was assumed and referred to with approval").
n18 See Ralph L. Ketcham, James Madison and Judicial Review, 8 Syracuse L. Rev. 158, 158-59 (1956-1957); Levy, supra note 15, at 4-6; Rossum, supra note 17, at 235-36.
n19 See Snowiss, supra note 15, at 45-89; see also William R. Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth 214-15 (1995) ("Throughout the Chief Justiceships of Jay and Ellsworth, few people denied that American courts operating under a written constitution had an implicit power of judicial review."); Hobson, supra note 13, at 64 ("In the decade following the adoption of the Constitution, the doctrine was asserted with increasing frequency and confidence not only in state and federal courts but also in legislative halls."); 1 Charles Warren, The Supreme Court in United States History, 1789-1835, at 257 (2d ed. 1926) ("An extensive examination . . . of public opinion discloses the fact that, from 1789 to 1802, there was almost no opposition to the exercise of the power of the Court to pass upon the validity of statutes, and that it had been almost unchallenged, until the debates in Congress in 1802 over the repeal of the Federalist Circuit Court Act."). But see Charles Grove Haines, The Role of the Supreme Court in American Government and Politics 1789-1835, at 243-45 (1944) (explicitly disagreeing with Warren).
n20 See, e.g., Kamper v. Hawkins, 3 Va. (1 Va. Cas.) 20 (Va. Gen. Ct. 1793). The best discussion of these state cases is found in Haines, supra note 16, at 148-70.
n21 See, e.g., 1 Goebel, supra note 16, at 589-92; 1 Warren, supra note 19, at 66-69.
n22 2 U.S. (2 Dall.) 409 (1792).
n23 See Casto, supra note 19, at 175-78; Haines, supra note 19, at 128-29; 1 Warren, supra note 19, at 69-71. The congressional pension scheme was unconstitutional, according to the Justices, to the extent that it compelled (rather than invited) the Justices to make administrative decisions that were subject to revision by the political branches.
n24 3 U.S. (3 Dall.) 171 (1796).
n25 See Casto, supra note 19, at 101-05, 221.
n26 State Replies to the Virginia and Kentucky Resolutions, 1799, in 4 Elliot, Debates on the Federal Constitution 532, 532-39 (Jonathan Elliot ed., 1861); see 1 Warren, supra note 19, at 260-61. Five of the seven state legislatures that responded to Virginia and Kentucky argued in favor of judicial review and against state nullification. See Dionisopoulos & Peterson, supra note 15, at 62 n.82.
n27 See 1 Warren, supra note 19, at 258-62.
n28 Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic 57-58 (1971); Haines, supra note 19, at 227-30; 1 Warren, supra note 19, at 206-07, 217-18. It was during these debates over the 1802 Repeal Bill that some Republicans began, apparently for the first time, to deny the power of judicial review. Haines, supra note 19, at 230-35; 1 Warren, supra note 19, at 215-16. Federalists responded by noting that these same Republicans had sung a different tune just a few years earlier. 1 Warren, supra note 19, at 218. This episode is also discussed in Dean Alfange, Jr., Marbury v. Madison and Original Understandings of Judicial Review: In Defense of Traditional Wisdom, 1993 Sup. Ct. Rev. 329, 360-64; Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333, 359-63 (1998); Jack Knight & Lee Epstein, On the Struggle for Judicial Supremacy, 30 Law & Soc'y Rev. 87, 95-96 (1996); James M. O'Fallon, Marbury, 44 Stan. L. Rev. 219, 221-39 (1992). Alfange makes the useful point that Marbury, coming after some Republican Congressmen had denied the existence of the judicial review power in the debates over the 1802 Repeal Bill, was a significant reaffirmation of the power. Alfange, supra, at 375.
n29 E.g., Ellis, supra note 28, at 65-66; Hobson, supra note 13, at 48, 55; 1 Warren, supra note 19, at 232 (noting that Republicans attacked Marbury, "not so much because it sustained the power of the Court to determine the validity of Congressional legislation, as because it enounced the doctrine that the Court might issue mandamus to a Cabinet official who was acting by direction of the President"); id. at 244 (noting that it was the dicta in Marbury that "aroused severe criticism and attack by President Jefferson and his adherents"); id. at 248 (noting that several Republican newspapers "showed no antagonism whatever to Marshall's view of the right of the Court to pass upon the constitutionality of an Act of Congress").
n30 E.g., O'Fallon, supra note 28, at 256 n.129 ("The weaknesses in Marshall's argument are notorious."). For criticism of Marshall's arguments, see Bickel, supra note 12, at 2-14; David P. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, at 71-74 (1985); Van Alstyne, supra note 13, at 6-33.
n31 Bickel, supra note 12, at 3-4; Alfange, supra note 28, at 431-33.
n32 Alfange, supra note 28, at 415-16, 431-32 (noting that Marshall declined to make Hamilton's prudential argument for judicial review). Alfange makes the interesting claim that Marshall may have chosen to make a logical, rather than a prudential, argument in defense of judicial review because the Jeffersonians' growing animosity toward the federal courts might have inclined them to rebut any prudential argument on the merits. Id. at 438.
n33 See Bickel, supra note 12, at 6; Alfange, supra note 28, at 418; Van Alstyne, supra note 13, at 27-29.
n34 Bickel, supra note 12, at 7-8; Currie, supra note 30, at 73; Alfange, supra note 28, at 435.
n35 See Currie, supra note 30, at 71-72.
n36 U.S. Const. art. VI, cl. 2.
n37 Id. (emphasis added).
n38 Currie, supra note 30, at 72-73; Alfange, supra note 28, at 417-18; Van Alstyne, supra note 13, at 21; see also id. at 20 (noting an alternative interpretation of "in Pursuance thereof" that would limit judicial review to issues of procedural compliance with the Constitution, rather than substantive review).
n39 Bickel, supra note 12, at 12-13.
n40 On the Supremacy Clause and its relationship to Madison's treasured national veto of state laws, see Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 171-77 (1996); Charles F. Hobson, The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government, 36 Wm. & Mary Q. 215 (1979).
n41 But cf. Edward S. Corwin, John Marshall and the Constitution 70 (1919) ("There is not a false step in Marshall's argument."); Dionisopoulos & Peterson, supra note 15, at 62 (stating that "no one can deny the great power of Chief Justice Marshall's reasoning in Marbury").
n42 See Casto, supra note 19, at 222-27 (arguing that judicial review was limited to those statutes that were "unconstitutional beyond dispute"); Robert Lowry Clinton, Marbury v. Madison and Judicial Review 18-30 (1989) (arguing that judicial review was confined to "legislation which bears directly upon the performance of judical functions"); Snowiss, supra note 15, at 34-44 (contending that judicial review was limited to "concededly unconstitutional" legislation). But see Alfange, supra note 28, at 333 (calling Clinton's interpretation "malarkey"); id. at 335-49 (criticizing Snowiss's interpretation); Mark A. Graber, Naked Land Transfers and American Constitutional Development, 53 Vand. L. Rev. 73, 105-06 (2000) (denying that the Marshall and Taney Court decisions in land transfer cases can be accounted for in terms of either clear constitutional violations or matters of special judicial concern).
n43 E.g., 1 The Records of the Federal Convention of 1787, at 97-98 (Max Farrand ed., 1911) (Elbridge Gerry) (stating that the judiciary "will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality"); 2 id. at 430 (James Madison) (stating that judicial review ought to be "limited to cases of a Judiciary Nature"); see also Levy, supra note 15, at 11 ("Judicial review emerged . . . mainly in cases relating to the province of the judicial department or trial by jury."); Boudin, supra note 16, at 254-55 (similar). But see Alfange, supra note 28, at 405-13 (strongly denying any such limited conception of judicial review).
n44 See Snowiss, supra note 15, at 38 (clearly unconstitutional laws); Rossum, supra note 17, at 236 (cases within the special purview of the judiciary).
n45 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 179 (1803).
n46 U.S. Const. art. I, § 9, cl. 5.
n47 Id. art. III, § 3, cl. 1.
n48 See also James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 140-42 (1893) (noting early state cases limiting judicial invalidation of statutes to cases where the constitutional violation was "plain and clear," "so manifest as to leave no room for reasonable doubt," and "clear and unequivocal"). While Dean Alfange is harshly critical of Snowiss's broader interpretation, he concedes the existence in the early years of the Republic of a "doubtful case" rule, under which courts could invalidate only clearly unconstitutional statutes. Alfange, supra note 28, at 342-44.
n49 E.g., Bayard v. Singleton, 1 N.C. (Mart.) 42 (1787). The best discussion of these cases is found in Haines, supra note 16, at 88-121.
n50 On Marshall's strained interpretations of the statute and the Constitution in Marbury, see Corwin, supra note 41, at 65-66; Currie, supra note 30, at 67-69; Van Alstyne, supra note 13, at 14-16, 30-33.
n51 Levy, supra note 15, at 5; Rossum, supra note 17, at 235-36.
n52 See, e.g., Hobson, supra note 13, at 70 ("Only in an indirect sense can Marbury be said to have laid the groundwork for modern judicial power.").
n53 See, e.g., Graber, supra note 13, at 262 (noting that "the language in Marbury bore fruit only when the political climate became more sympathetic to judicial review and the justices' particular favored policies"); Mark A. Graber, The Passive-Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Power, 12 Const. Comment. 67, 90 (1995) (contending that the
Marshall Court "cannot be said to have firmly established the practice of judicial review in the United States," because the Justices so "feared hostile political forces" that they "avoided issuing rulings that might antagonize the judiciary's more powerful opponents").
n54 See infra notes 250-51and accompanying text.
n55 See, e.g., Hobson, supra note 13, at 49 ("Far from being a bold assertion of judicial power, Marbury actually marked a strategic retreat by the judiciary . . . ."); see also Graber, supra note 14, at 28 (noting that "the cases conventionally used to illustrate the establishment of judicial power . . . better illustrate the relative impotence of the federal judiciary during the first decades of the constitutional order").
n56 E.g., Alfange, supra note 28, at 393 ("Neither the Court's reading of the statute nor its reading of the Constitution was obvious, and commentators have generally concluded that Marshall adopted strained constructions of both in order to be able to invalidate the act."); Graber, supra note 13, at 250 (noting that "virtually all contemporary commentators agree that Marshall in Marbury twisted legal doctrine when declaring unconstitutional Section 13 of the Judiciary Act of 1789").
n57 Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803); see Currie, supra note 30, at 74-77. For thorough discussions of the 1802 Repeal Act, see Ellis, supra note 28, at 36-52; 2 Haskins & Johnson, supra note 14, at 136-81.
n58 1 Warren, supra note 19, at 269-71; Letter from Marshall to Justice Paterson (Apr. 6, 1802), in 6 The Papers of John Marshall 105, 106 (Charles F. Hobson ed., 1990) ("I confess I have some strong constitutional scruples. I cannot well perceive how the performance of circuit duty by the Judges of the supreme court can be supported."); Letter from Marshall to Judge William Cushing (Apr. 19, 1802), in 6 The Papers of John Marshall, supra, at 108, 108 ("For myself I more than doubt the constitutionality of this measure & of performing circuit duty without a commission as a circuit Judge"); Letter from Justice Chase to Marshall (Apr. 24, 1802), in 6 The Papers of John Marshall, supra, at 109, 109-16 (expressing the view that the repeal of the circuit judgeships was unconstitutional). The Repeal Bill arguably was unconstitutional both because it abolished existing federal judgeships, possibly in violation of Article III, and because it restored the Justices' circuit-riding obligations, arguably in violation of both the Article III limitations on the Supreme Court's original jurisdiction and the requirement that federal judges be nominated and confirmed. (Circuitriding was abolished in 1801, then restored in 1802, but the Justices were not confirmed again by the Senate when these additional judicial duties were thrust upon them.) Chief Justice Jay had insisted from the beginning that congressional imposition of circuit-riding obligations on the Justices was unconstitutional. 1 Warren, supra note 19, at 85.
n59 Ellis, supra note 28, at 60-62; R. Kent Newmyer, The Supreme Court Under Marshall and Taney 28 (1968).
n60 Alfange, supra note 28, at 364 ("The Court [in Stuart] acted out of a fully justified fear of the political consequences of doing otherwise. . . ."); see Currie, supra note 30, at 78 n.102 (calling the result in Stuart "an exercise in self-preservation"); Stephen B. Presser, The Original Misunderstanding: The English, the Americans and the Dialectic of Federalist Jurisprudence 163 (1991) (calling the result in Stuart "a shirking of the responsibility for fidelity to the Constitution on the part of the judiciary"); 1 Warren, supra note 19, at 270 (quoting Marshall's statement in correspondence that "the consequences of refusing to carry the law into effect may be very serious"); Knight & Epstein, supra note 28, at 96-97, 111-12 (concluding that Marshall was behaving strategically rather than voting his preferences, and that Stuart clearly was a concession deemed necessary after Marbury). Many contemporaries believed that the House impeachment proceedings against Federalist District Judge Pickering of New Hampshire were commenced just before the oral argument in Marbury as a warning to the Justices. Id. at 97-98.
n61 Letter from Marshall to Justice Chase (Jan. 23, 1804), in 6 The Papers of John Marshall, supra note 58, at 347, 347 ("I think the modern doctrine of impeachment shoud sic yield to an appellate jurisdiction in the legislature.").
n62 See infra text accompanying notes 293-306 (discussing the Chase impeachment). Cf. C. Peter Magrath, Yazoo: Law and Politics in the New Republic: The Case of Fletcher v. Peck 55-58 (1966) (speculating that one reason the Fletcher lawsuit was allowed to remain in abeyance so long in the trial court was the litigants' desire to avoid forcing an appeal to the Supreme Court at a time when it "was being rocked by political pressure"). Fletcher is discussed infra text accompanying notes 265-69.
n63 1 Warren, supra note 19, at 392. The case was Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).
n64 Newmyer, supra note 59, at 31. The case was Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). However, the Taney Court on many occasions narrowly construed federal statutes to avoid constitutional problems and seems to have implicitly invalidated some federal land transfers. See Graber, supra note 42, at 88-90.
n65 See, e.g., Mark A. Graber, Establishing Judicial Review? Schooner Peggy and the Early
Marshall Court, 51 Pol. Res. Q. 221, 224 (1998) (noting that the early
Marshall Court sought "to preserve judicial power by asserting its existence . . . while not actually attempting to challenge executive or legislative authority in any controversial way"); id. at 232 (asserting that the
Marshall Court "desperately avoided clashes with a potentially hostile administration").
n66 The scope of national legislative authority previously had been raised in United States v. Fisher, 6 U.S. (2 Cranch) 358 (1805), involving the power of Congress to establish liens in favor of the United States on the estates of bankrupt individuals. Id. at 396 (rejecting the argument that the Necessary and Proper Clause limits Congress to means that are "indispensably necessary," as opposed to merely "conducive to the exercise of a power granted by the constitution").
n67 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413 (1819).
n68 Id. at 421.
n69 Id. at 423.
n70 Id.
n71 For background on Gibbons, see Maurice G. Baxter, The Steamboat Monopoly: Gibbons v. Ogden, 1824 (1972); 1 Warren, supra note 19, at 597-621.
n72 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189 (1824).
n73 Id.
n74 Id. at 194.
n75 Id. at 195.
n76 See infra notes 157-74 and accompanying text.
n77 See, e.g., Corwin, supra note 41, at 145 (noting that Marshall saw himself as the "official custodian" of nationalist principles "in face of the rising tide of State Rights").
n78 1 Warren, supra note 19, at vii; see Irving Brant, John Marshall and the Lawyers and Politicians, in Chief Justice John Marshall: A Reappraisal 38, 58 (W. Melville Jones ed., Da Capo Press 1971) (1956) (crediting the
Marshall Court's nationalist decisions from 1819 to 1824 with "establishing forever the national character of the United States"); see also J.M. Balkin & Sanford Levinson, Legal Canons: An Introduction, in Legal Canons 3, 6 (J.M. Balkin & Sanford Levinson eds., 2000) ("At least within the field of constitutional law, almost everyone seems to agree that McCulloch is canonical.").
n79 R. Kent Newmyer, John Marshall and the Southern Constitutional Tradition, in An Uncertain Tradition: Constitutionalism and the History of the South 105, 108 (Kermit L. Hall & James W. Ely, Jr. eds., 1989).
n80 4 Albert J. Beveridge, The Life of John Marshall 429-30 (1919).
n81 1 Warren, supra note 19, at 616; see also Baxter, supra note 71, at v (proclaiming Gibbons one of the half-dozen most significant decisions in the Court's history); George L. Haskins, Marshall and the Commerce Clause of the Constitution, in Chief Justice John Marshall: A Reappraisal, supra note 78, at 145, 146, 152 (noting that Gibbons has had "enduring . . . influence" and that its practical effect was "enormous"); Newmyer, supra note 59, at 51-52 (noting the "profound" consequences of Gibbons); Samuel R. Olken, Chief Justice John Marshall and the Course of American Constitutional History, 33 J. Marshall L. Rev. 743, 773-75 (2000) (attributing tremendous significance to Gibbons).
n82 Baxter, supra note 71, at 132-33; Joseph Dorfman, John Marshall: Political Economist, in Chief Justice John Marshall: A Reappraisal, supra note 78, at 124, 131 (noting that the
Marshall Court's commerce clause decisions laid the groundwork for the vast regulatory power of the national government in the twentieth century); Carl Brent Swisher, Introduction to Chief Justice John Marshall: A Reappraisal, supra note 78, at 1, 9-10 (same); cf. Heart of Atlanta Motel v. United States, 379 U.S. 241, 253-55 (1964) (suggesting that the principles announced in Gibbons are sufficient to sustain the constitutionality of the public accommodations provisions of the Civil Rights Act of 1964); United States v. Darby, 312 U.S. 100, 115-16 (1941) (same regarding the Fair Labor Standards Act).
n83 E.g., John Marshall's Defense of McCulloch v. Maryland 4 (Gerald Gunther ed., 1969) ("To assert in 1819 that Congress had the power to establish a national bank was to validate an existing consensus, not to break new ground."); Graber, supra note 13, at 256 (noting that "virtually all influential national politicians in 1819 agreed that the Bank was constitutional").
n84 Madison's speech and Jefferson's memorandum are reproduced in Jefferson Powell, Languages of Power: A Sourcebook of Early American Constitutional History 37-43 (1991).
n85 E.g., Bray Hammond, Banks and Politics in America: From the Revolution to the Civil War 233 (1957).
n86 See Norman K. Risjord, The Old Republicans: Southern Conservatism in the Age of Jefferson 165-66 (1965).
n87 Hammond, supra note 85, at 233-34; Risjord, supra note 86, at 166.
n88 McCulloch, 17 U.S. (4 Wheat.) at 401.
n89 E.g., 2 A Virginian's "Amphictyon" Essays, in John Marshall's Defense of McCulloch v. Maryland, supra note 83, at 65, 72 [hereinafter 2 Amphictyon].
n90 On compact theory, see infra notes 359-60 and accompanying text.
n91 E.g., 1 A Virginian's "Amphictyon" Essays, in John Marshall's Defense of McCulloch v. Maryland, supra note 83, at 52, 54-55 [hereinafter 1 Amphictyon].
n92 Madison's Veto of the Bonus Bill (Mar. 3, 1817), in 1 James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1897, at 584, 584-85 (1900). For background, see Robert Allen Rutland, The Presidency of James Madison 205-07 (1