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Document Outline
Review and Reaction
Congress and Commerce
State Powers
The Cherokee Crisis
End of an Era

The Supreme Court term that convened February 2, 1819, was one of its most notable. The justices announced three major constitutional decisions: Dartmouth College v. Woodward, Sturges v. Crowninshield, and McCulloch v. Maryland. With those opinions, the Court dramatically illustrated its view that the Constitution imposed stricter limitations on state actions than on the actions of Congress.

The Dartmouth College decision was announced on the first day of the term, which opened in the Court′s quarters in the rebuilt courtroom under the Senate chamber. Argued for three days in the preceding term, the case had drawn little attention in the nation′s press; the dispute between a small college in New Hampshire and that state′s legislature hardly seemed notable, but the issue was of major significance for the nation′s economic development: Did the Constitution′s Contract Clause protect private corporate charters, including public grants, against impairment by the state? Yes, it did, responded the Court with only Justice Duvall dissenting. Not only did the decision protect Dartmouth College from a legislature that wished to reshape its structure and purpose, but also it promised embryonic U.S. corporations that they were secure against such tampering with charters. [55] Two weeks later the states received another blow. On February 17 in Sturges v. Crowninshield, the Court held invalid New York′s insolvency law—enacted to ease the difficulties of debtors in default—declaring that it violated the ban on state action impairing the obligation of contracts because it allowed the discharge of debts contracted before its passage. [56] The day before, the National Intelligencer of Washington, D.C., had become the first newspaper to run daily announcements on the actions of the Supreme Court. Even so, Sturges v. Crowninshield was misreported and misunderstood. Until a second ruling, in Ogden v. Saunders (1827), it was generally thought that the states lacked any power to afford debtors relief in cases of insolvency. [57]

“Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate … which are not prohibited … are constitutional.” — Chief Justice John Marshall, McCulloch v. Maryland, 1819 (Source: Collection of the Supreme Court of the United States.)

After these two rulings, the Court heard arguments—for nine days in late February and early March—in McCulloch v. Maryland. This case posed two questions: May Congress charter a national bank, and may states tax its operations? When the Court announced its decision on Saturday, March 6, Congress won, and the states lost. [58] Marshall, speaking for a unanimous Court, declared that Congress has broad power under the “necessary and proper” clause to decide the means by which it implements its powers. “Let the end be legitimate, let it be within the scope of the Constitution,” Marshall wrote, “and all means which are appropriate … which are not prohibited are constitutional.” [59] The Bank of the United States was a useful fiscal instrument for national economic stability, so Congress might properly decide to incorporate it. Furthermore, states could not hamper the exercise of this power. They could not tax the bank, for by taxing it, they could destroy it and frustrate the congressional purpose in chartering it. This decision aroused intense opposition, especially in the South and the West, where the bank was particularly hated, at least in part because it was badly managed, corrupt, and dominated by Federalists and British investors. McCulloch v. Maryland, wrote Robert McCloskey, “is by almost any reckoning the greatest decision John Marshall ever handed down.” In upholding the constitutionality of the bank′s incorporation, Marshall

set down the classic statement of the doctrine of national authority. The argument he advanced was not new; its main outlines had been endlessly debated since the first Congress… . But Marshall deserves the credit for stamping it with the die of his memorable rhetoric and converting it from a political theory into the master doctrine of American constitutional law. [60]

Review and Reaction

With its decision in Cohens v. Virginia (1821) the Supreme Court for the second time affirmed its power to review the decisions of state courts. Cohens, like Martin v. Hunter′s Lessee, presented the Court with a basic challenge to its power under Section 25 of the Judiciary Act. With great firmness, Chief Justice Marshall reiterated the points that Justice Story had made in the 1816 ruling. When a state court held that state action did not conflict with the U.S. Constitution, federal law, or U.S. treaties, it was the constitutional obligation of the U.S. Supreme Court to review that decision. [61] Those who approved the decision considered it “one of the chief bulwarks of American unity.” Critics—still led by former president Jefferson—saw it as one more blow to state sovereignty. Jefferson complained that the Court was “working like gravity to press us at last into one consolidated mass.” [62]

By 1825 the Court had nullified as unconstitutional at least one law from each of ten states. These rulings set off an effort to remove or to at least restrict this power. Advocates of such a restriction considered repealing Section 25, amending the Constitution to have the Senate, not the Court, review all cases involving a state, and passing a law to require that five—or all seven—justices concur in holding a state law invalid. Jefferson proposed that each justice be required to issue a separate opinion—as in the pre-Marshall days—and suggested that Congress then denounce the views of those with whom it disagreed and impeach the justices who did not change their views. None of these proposals was approved by both chambers of Congress.

From 1811 to 1823 the Court was remarkably stable. There was no change in the Court′s membership until March 1823, when Justice Livingston died. President James Monroe chose Secretary of War Smith Thompson, also of New York, to fill the seat. Confirmed by a voice vote in the Senate late in the year, Thompson took his seat for the February 1824 term. Thompson, however, took no part in the most important case of his twenty-year-tenure—Gibbons v. Ogden (1824), involving control over commerce. The case was decided during his first term, but because Thompson was related by marriage to the Livingston family—to whom the contested steamboat monopoly involved in the case had been granted—he did not participate in the landmark ruling.

Congress and Commerce

According to the Constitution, Congress has the power to regulate interstate and foreign commerce, but it scarcely exercised this power until well into the nineteenth century. In contrast, the states had long passed a variety of laws regulating commerce and transportation within their borders. In 1824, with the decision in Gibbons v. Ogden, the Court began to define the reach of federal commerce power and the limits it imposed on state power. The case involved a challenge to New York′s grant of a monopoly giving the Fulton-Livingston partnership exclusive rights to run steamships on New York waterways. The monopoly provoked considerable interstate animosity that threatened to destroy the national peace and any sort of incipient national commercial network. Challengers, represented by Daniel Webster, argued that the monopoly interfered with the federal power to regulate interstate commerce, because it excluded from New York waterways vessels licensed under the federal coasting law, the most notable early law passed by Congress to implement its commerce power.

The case pitted Republican against Federalist and was argued for five days in February 1824. On March 3 Chief Justice Marshall announced the Court′s opinion. Commerce, he explained, was not merely the buying and selling of goods; it also embraced “intercourse” of all sorts, including navigation. Congress had licensed vessels in the coasting trade, and the state monopoly conflicted with the free operation of those federally licensed vessels and so must be held invalid. Gibbons v. Ogden ranks with McCulloch v. Maryland as one of the two major rulings of the Marshall era establishing national power and national supremacy. [63] Furthermore, Gibbons v. Ogden served as the “emancipation proclamation of American commerce,” [64] giving impetus to the development of the port of New York, the railroads, and a national system of commerce.

A few weeks after Gibbons, the Court approved further extension of federal authority at the expense of state prerogatives, holding in Osborn v. Bank of the United States (1824) that the bank could sue state officials in federal court even if the state did not consent. The Court declared that a state official who acted in reliance upon an unconstitutional state law—or exceeded his proper authority—was not immune from being sued in federal court for his actions. [65] The justices thereby began to narrow the scope of the Eleventh Amendment′s protections against states being sued.

In response to the Court′s steadily increasing workload, Congress lengthened the Court′s term. Beginning in 1827, the Court convened its term a month earlier, on the second Monday in January. The 1827 term was a busy one, with the Court resolving 77 cases during the two-month session, leaving 109 for resolution in the next term. [66] When the 1827 term began, the Court had a new member. Justice Todd had died in February 1826, and President John Quincy Adams named federal judge Robert Trimble of Kentucky as his successor; the Senate confirmed him, 27–5. With the January 1828 term, a new reporter, Richard Peters Jr., began a fifteen-year tenure of publishing the Court′s opinions.

State Powers

With federal supremacy firmly established by Marbury, McCulloch, and Gibbons, the Court recognized that in some areas states could act concurrently with the federal government. In Ogden v. Saunders (1827) the Court clarified the power of states to enact laws to help debtors. By an unusually close 4–3 vote, the justices upheld New York′s revised insolvency law, which—as amended after the 1819 ruling in Sturges v. Crowninshield—applied only to debts contracted after its passage. Chief Justice Marshall, for the first and only time in his career, was on the losing side in a constitutional case. Emphasizing the deference the Court owed to the decision of state legislators, Justice Washington wrote the majority opinion. Justices Duvall and Story joined Marshall in dissent. Later in the term, the Court upheld a state′s power to abolish the penalty of imprisonment for debtors. This change did not impair the obligation of a contracted debt, held the Court in Mason v. Haile (1827); rather, it simply modified the remedy for defaulting on that obligation. [67]

Advocates of state powers did lose a major case in 1827. Brown v. Maryland raised the issue of state power to tax imported goods. [68] The state′s advocate was Roger Brooke Taney, who followed Marshall as chief justice. As Marshall had lost Ware v. Hylton before the Court, so Taney would be on the losing end of Brown. States, the Court held in Brown, could not tax persons who sold imported goods, because such a tax interfered with the federal regulation of imports. So long as imported goods remained in their original package, held the Court, they could not be taxed by the state.

In 1828 Justice Trimble, the Court′s junior member, died. Defeated for reelection, President Adams nevertheless named John J. Crittenden of Kentucky to fill the Trimble seat. The Senate, however, refused to consider the nomination. President Andrew Jackson, a week after his inauguration, nominated John McLean of Ohio, Adams′s postmaster general, to the empty seat. McLean, a perennial presidential candidate during his thirty-one years on the Court, had already served in the House, run unsuccessfully for the Senate, and expanded the Post Office into the largest department in the executive branch. One of the most political of all the justices, McLean never hesitated to use his judicial opinions for political ends. There was at least one other unsettling member of the Court during this period, wrote G. Edward White: “If McLean′s political concerns sometimes made him a distracted presence on the Court, Henry Baldwin′s presence was surely a distracting one.” [69] Baldwin was Jackson′s choice to fill the seat left vacant in 1829, when Justice Washington died. A Pennsylvanian, Baldwin was one of the most eccentric men ever to serve on the Court. His fourteen years as a justice were characterized by bouts of mental illness, vociferous quarrels with his colleagues, and bizarre constitutional writings.

Four times in the 1829 term, the Court spoke to questions of state power. The effect of three of its rulings was to restrict state authority. In Providence Bank v. Billings the Court held that a state that intended to grant a corporation a tax exemption must expressly include that privilege in the corporation′s charter. [70] In Weston v. City Council of Charleston the Court held that cities and states could not tax U.S. stock, finding such a tax an impermissible interference with the federal borrowing power. [71] In Craig v. Missouri the Court held that the constitutional ban on state bills of credit prohibited states from issuing loan certificates. [72] States, however, did win a ruling; in Willson v. Blackbird Creek Marsh Co. the Court upheld state power to regulate waterways and navigation thereupon, as long as Congress had not done so. [73]

One slavery case was considered in the 1829 term. In Boyce v. Anderson the justices held that a slave who drowned in a steamboat accident was a passenger, not freight. Slave-owners were disappointed, because their recovery would have been greater had the slave been considered freight. [74]

The Cherokee Crisis

Georgia and the Supreme Court collided in the waning years of the Marshall era over the state′s effort to exert its authority over the Cherokee nation by enacting stringent laws affecting their lives and their land. The Cherokees asked the Supreme Court to order Georgia to stop enforcing such laws. While their request was pending before the Court late in 1830, Georgia ignored a Court-ordered stay of execution for a Cherokee convicted of murder under the challenged laws. In 1831 the U.S. House of Representatives refused again to repeal the statute authorizing the Court to review state court rulings. In March the Court held that the Cherokees′ case, brought as an original suit, could not proceed in that fashion because the tribe was not a separate nation in the eyes of federal law. [75]

A second case quickly arose. Georgia had charged and convicted two missionaries, Samuel Worcester and Elizur Butler, for violating the state law that forbade white persons to live in Indian country without a state license. Worcester and Butler took their case to the Supreme Court, arguing that the state lacked the power to impose or enforce such a requirement. In Worcester v. Georgia (1832) Chief Justice Marshall announced that the Court had found the state law unconstitutional, a usurpation of exclusive federal jurisdiction over Indian matters. The missionaries′ conviction was reversed, and the Court declared that they should be released. [76] Georgia refused to comply. President Jackson openly sympathized with the state, allegedly remarking, “Well, John Marshall has made his decision, now let him enforce it.” For eight months the confrontation persisted, and Worcester and Butler remained in jail. Jackson was reelected. Marshall was depressed, writing to Story that he doubted the Union would survive in the face of such rebellion by state authority.

Late in 1832, however, South Carolina′s legislature, unhappy with a protectionist federal tariff, adopted a declaration “nullifying” the new tariff with which it had refused to comply. This action placed Jackson in the highly contradictory position of supporting Georgia′s resistance to the Supreme Court′s decision while saying South Carolina′s resistance to the tariff was treason. Jackson made his choice and asked Congress to increase the power of federal courts to enforce federal laws in the face of such nullification. It was clear to Georgia that its resistance to the Supreme Court′s order would no longer have presidential support, so the governor pardoned the missionaries, and the case ended. In 1833 Congress approved Jackson′s request for expanded federal judicial power.

End of an Era

Marshall′s last major constitutional opinion was Barron v. Baltimore (1833), holding that the Bill of Rights limited only federal, not state, action. [77] “It is a striking fact,” writes Charles Warren, “that this last of Marshall′s opinions on this branch of law should have been delivered in limitation of the operations of the Constitution whose undue extension he had been so long charged with seeking.” [78] As a result of Barron v. Baltimore, nearly a century passed before the Court focused its attention on the rights of individuals. The decision also made necessary the enactment of the Fourteenth Amendment, which provided federal protection for the rights to liberty and equal justice. Only in the early decades of the twentieth century did the Court begin to rely on the guarantees in the Bill of Rights and the Fourteenth Amendment to strike down state laws and local ordinances infringing the rights of individuals in an expansion of federal judicial power comparable to that of the Marshall era.

Three major cases were argued in the early 1830s but carried over to later terms because the Court was unable to resolve the questions they posed: Charles River Bridge v. Warren Bridge (1837), Briscoe v. Bank of the Commonwealth of Kentucky (1837), and New York v. Miln (1837). With Marshall nearing eighty and Johnson and Duvall ill and absent much of the time, the Court′s pace slowed. An era was ending. Justice Johnson, the independent who fathered the Court′s tradition of dissent, died in August 1834. To succeed him, Jackson named James Moore Wayne of Georgia.

Duvall resigned in January 1835, and Jackson named Roger Taney, former attorney general and Treasury secretary, to succeed him. Taney had supported Jackson in the president′s war on the Bank of the United States, implementing his order to remove U.S. funds from the bank. As secretary Taney had made many enemies. Whig opposition to his nomination convinced the Senate, on the last day of its 1835 session, to postpone consideration of his nomination. The vote to postpone was 24–21. Then, on July 6, 1835, Chief Justice John Marshall died, leaving the Court′s center chair vacant. The eulogies were numerous and elaborate, but perhaps the most objective assessment of Marshall′s accomplishment as chief justice came from abroad. After traveling through the United States in the last years of the Marshall era, Alexis de Tocqueville wrote of the Supreme Court,

The peace, the prosperity, and the very existence of the Union are vested in the hands of the seven Federal judges. Without them the Constitution would be a dead letter: the executive appeals to them for assistance against the encroachments of the legislative power; the legislature demands their protection against the assaults of the executive; they defend the Union from the disobedience of the states, the states from the exaggerated claims of the Union, the public interest against private interests, and the conservative spirit of stability against the fickleness of the democracy. Their power is enormous, but it is the power of public opinion. [79]

No one had done more than John Marshall to establish that enormous power or to win the essential public respect for the still-young Supreme Court.

 

Document Citation
1 David G. Savage, A Remarkable Term, 1819, in Guide to the U.S. Supreme Court 14-17 (5th ed., 2011), http://library.cqpress.com/scc/gct5v1-1179-57455-2234261.
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Document URL: http://library.cqpress.com/scc/gct5v1-1179-57455-2234261