Without Precedent

by Joel Richard Paul

  From Eliza ’twas caught, whom e’en birds hear with pleasure

  As brightly she trips the green meadow along.

  O breathe them again while with rapture I listen,

  Every beat of my heart is responsive to thee;

  And my eyes to behold thee with ecstasy glisten

  With the gray breast reclined on that high poplar tree.26

  Marshall cryptically titled the poem “From the Chameleon to the Mocking Bird.”

  Why a chameleon? A chameleon is capable of disguising itself, of appearing to be something it is not. Is Marshall implying here that he was not always faithful to Polly? It would not be surprising if a man with his vitality and social opportunities felt tempted from time to time to stray from his long-suffering wife.

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  IN MARCH 1816, the Court heard the famous case of Martin v. Hunter’s Lessee.27 This was the latest and final incarnation of the case that Marshall had initiated a quarter of a century earlier on behalf of Lord Fairfax’s estate. Fairfax’s nephew and heir, Denny Martin, was suing to determine who had good title to the Virginia land once held by Fairfax. In 1796, Marshall had prepared to argue the issue before the Supreme Court, but fate intervened: The argument was postponed by the death of the opposing counsel, and soon after that, Marshall left for France. Now, two decades later, the case had finally returned to the Supreme Court. Since Marshall had purchased much of Martin’s property, he was personally interested in the outcome, and for this reason, he recused himself from judging the case.

  Of more than one thousand opinions issued by the Marshall Court, Martin is among the most significant, and yet it is one of the very few that Marshall did not write. While Justice Story signed the majority opinion, there is strong reason to suspect Marshall had a hand in drafting it. The language and arguments based on both constitutional law and the law of nations are written in Marshall’s distinctive voice. Moreover, the underlying principles of the decision embody the core of Marshall’s own beliefs about the nature of the Union and the role of treaties in domestic law. Marshall and Story had become such intimate associates that it was sometimes hard to know where one began and the other ended. Despite his republicanism and his Yankee detachment, Story gushed, “I am in love with [Marshall’s] character, positively in love.” Story loved Marshall’s hearty laugh and admired “his good temper and unwearied patience” both on and off the bench.28 Marshall’s critics surely thought Story’s decision bore Marshall’s fingerprints, and even Justice Story later confessed that the chief justice “concurred in every word of it.”29

  This specific suit began twenty-five years earlier, in 1791, as an action brought by John Marshall on behalf of Denny Martin in a Virginia district court against David Hunter for trespass on the land Martin had inherited from his uncle. Virginia had expropriated this land during the Revolutionary War and sold it to Hunter in 1788. The case had come before Virginia’s highest court, the Court of Appeals, which held that Martin did not have good title under the law of the commonwealth. The case was appealed to the Supreme Court in 1813. Story, writing for the majority, held that the Treaty of Paris ending the Revolutionary War had restored Martin’s title. Relying on the supremacy clause in Article VI of the Constitution, Story found that since treaties were the “supreme law of the land,” the treaty trumped even Virginia’s prior statute. A writ was issued to the Virginia court to order Hunter’s lessee off the property.

  However, the Virginia court refused to comply. Virginia’s Court of Appeals held that under the Constitution, the Supreme Court had no power to hear an appeal from a state’s highest court.30 In effect, the Virginia Court of Appeals asserted that the state and federal governments were sovereign equals and that each state’s highest court was free to interpret the U.S. Constitution as it saw fit. A state court could, if it wished, nullify a federal law or, as in this case, a federal treaty.

  Once again Martin petitioned the Supreme Court challenging the refusal of the Virginia Court of Appeals to give effect to the Supreme Court’s order.31 The petition framed two of the most fundamental questions in our constitutional system: Is the Supreme Court supreme over the state courts? And is federal law, including federal treaties, supreme over state law? If the Virginia Court of Appeals were correct, then the Constitution was merely a compact among sovereign states that the states were free to ignore, and the Supreme Court was not the final arbiter of its meaning. It would allow state courts to nullify federal law and make it impossible for any foreign government to rely on its treaties with the United States. These were the very issues that lay at the foundation of the Civil War forty-five years later.

  There was also an intensely personal aspect to this case.32 The Virginia Court of Appeals decision was authored by the court’s president, Spencer Roane. Roane and Marshall had a long history of professional and political conflict that dated back more than thirty years. Roane was the leader of Virginia’s Republican Party, while Marshall was the leading Federalist. Roane was especially close to Jefferson and Madison. In fact, Roane would have been Jefferson’s own candidate for chief justice of the United States if John Adams had not nominated Marshall. The bitter feud between Jefferson and Marshall continued between Roane and Marshall. Roane was well aware that Marshall was the real party in interest in Martin’s suit, and he had no reason to accommodate Marshall. It would hardly be surprising if Roane had discussed his decision first with Jefferson, who no doubt would have encouraged him to confront Marshall.33

  Marshall reciprocated Roane’s disdain even though Marshall had the remarkable capacity to maintain friendships with people of all political affiliations. Throughout his career, he befriended his political and legal adversaries. He was even civil toward Jefferson. But the one man he could not suffer was Spencer Roane. And when Roane dared to suggest that the Supreme Court was not, in fact, supreme over the states, Marshall excoriated him publicly. Marshall wrote that the Supreme Court was not merely a “partial, local tribunal” like the Virginia Court of Appeals. It had been established by “the people of the United States” to decide “all national questions.” Marshall continued that in every case before every other court in the nation, the Supreme Court’s judgment “has been acquiesced in, and the jurisdiction of the court has been recognized.” Quoting from Hamilton in The Federalist, Marshall concluded that Roane’s decision in Martin’s case was “the only example furnished by any court in the union of a sentiment favorable to that ‘hydra in government,’ from which, says the Federalist, ‘nothing but contradiction and confusion can proceed.’”34

  In perhaps his most important decision, Justice Story declared that “the constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.’” In Story’s view, the people had decided to limit the sovereign power of the states by the Constitution and make the states subordinate to federal laws and treaties.35

  With a careful textual reading of the relevant portions of the Constitution, Story found that the state courts were required to submit to the Supreme Court’s appellate jurisdiction.36 Story pointed out that unless the Supreme Court had appellate jurisdiction over all the state courts, state judges might arrive at conflicting judgments about the meaning of constitutional provisions. In order to preserve a uniform interpretation of the Constitution and federal statutes and treaties, it was essential that the Supreme Court have appellate jurisdiction over the state courts.37

  Story rejected the argument that the Supreme Court’s appellate jurisdiction over state courts infringed on state sovereignty. He boldly insisted that the Constitution was intended to “restrain or annul the sovereignty of the states.”38 Story asserted that the individual will of each state was subordinate to the interest of the whole nation. “The security and happiness of the whole was the object, and to prevent di
ssension and collision, each surrendered those powers which might make them dangerous to each other.”39

  Today, Martin remains a cornerstone of the Union. Writing a century later, Supreme Court Justice Oliver Wendell Holmes wrote that “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”40

  Back in Virginia, no one doubted that Marshall had a hand in the Court’s decision in Martin. It was followed by a line of decisions by the Marshall Court asserting the supremacy of federal law over the states. And it was the final act in Marshall’s estrangement from his native Virginia.

  CHAPTER TWENTY-SIX

  THE SUPREME LAW

  Alexander Hamilton persuaded Congress to approve the first Bank of the United States in 1791 as a temporary measure to refinance the country’s Revolutionary War debt. Jefferson, Madison, and other Republicans opposed the creation of a national bank, which they argued exceeded the federal government’s power. The charter of the first national bank lapsed in 1811, and Madison, who was then president, had no intention of renewing it. At that time there were some ninety state banks competing for business with the national bank. As a result of the national bank’s demise, the number of state banks soared to 250. Each state bank printed its own bank notes, which had questionable value at any other bank. By 1814, the increase in the money supply created wild inflation and led to the collapse of the country’s banking system, and even Jefferson, Madison, and Monroe shifted their views on the merits of a national bank. Pragmatism trumped ideology, as it eventually must.

  In 1816, the Republican Congress agreed to charter the Second Bank of the United States to restore value to the money supply and refinance the national debt following the War of 1812.1 The bank’s initial capitalization was thirty-five million dollars, which made it perhaps the largest corporation in the United States, if not the world. The bank could control the money supply by issuing its own bank notes and trading in bank notes issued by state banks. It also lent money to the federal government, the states, and private borrowers. The federal government held 20 percent of the shares, and private banks and investors, many of them British, held the majority of the stock. When the bank opened its doors in 1817, it quickly prospered and established branch offices in eighteen cities throughout the country.2

  From the outset, state bankers and state officials viewed the bank with suspicion. The bank’s size and the wealth of its shareholders dominated the market. The bank outcompeted state banks by offering loans at very favorable rates to land speculators with questionable credit. When commodity prices slipped, the bank called in its loans to state banks and businesses. Banks and businesses were unable to repay their loans. Depositors could not be repaid. In the Panic of 1819, the economy plunged into the worst depression since the Revolution. States blamed the national bank as the source of misery. To make matters worse, the bank was not merely unsound; it was unsavory. Bank officers treated depositors’ funds as their own. The corruption was on an unprecedented scale.3

  Republicans opposed to federal power, businesses and farmers facing insolvency, and state bankers pushed for state laws to exclude the national bank from their states. The Maryland legislature imposed a stamp tax on bank notes issued by the bank. The tax ranged from ten cents to twenty dollars depending on the face value of the bank note. The manager of the Baltimore branch of the national bank, James McCulloch, sought to challenge the state statute. He refused to pay the tax, and an informer, John James, reported him to Maryland officials for a reward of one hundred dollars. McCulloch was convicted in Maryland state court of violating state law and appealed to the Supreme Court.

  Daniel Webster, one of the leading attorneys of the day, represented McCulloch along with Attorney General William Wirt and William Pinkney. Luther Martin, Joseph Hopkinson, and Walter Jones defended Maryland’s law. The Court set aside nine days to hear the historic argument.

  After listening to William Pinkney’s three-day summation of the bank’s argument, Justice Story wrote that “never in my whole life, have I heard a greater speech.”4 The arguments raised fundamental questions about the relationship between the federal government and the states. If a federally chartered bank could be taxed by a state, what was the meaning of federal supremacy? But if the bank was immune from state taxes, what was the meaning of state sovereignty? These were not merely academic questions. For years Congress had bitterly debated various measures for improving the nation’s infrastructure. Internal improvements, such as roads and canals, were vital to building a modern nationwide economy but were resisted by many Republicans, including Madison and Monroe, who believed that the Constitution limited the size of the federal government. If Congress could charter a national bank, then it had the authority to engage in other projects to stimulate commerce. And most important, if Congress could encroach on state sovereignty this way, southerners feared that Congress could also interfere with slavery.

  On March 6, 1819, just three days after the closing arguments in McCulloch v. Maryland, Marshall delivered the Court’s unanimous opinion, which was almost surely written before the arguments were heard. Borrowing liberally from Alexander Hamilton’s memorandum to Washington that defended the constitutionality of the first United States Bank, Marshall addressed two broad issues: First, whether Congress had the power to charter a national bank, and second, whether a state had the power to tax it.5

  Marshall held that even though the Constitution did not explicitly grant Congress the power to charter a national bank, reading the Constitution was not like reading a statute. Congress must be allowed to respond to circumstances and exigencies as they arose. The chief justice famously declared that “we must never forget it is a constitution we are expounding.”6 The Constitution gave Congress the power to make “all laws necessary and proper” to carry out any of its express powers.7 Marshall interpreted this broadly: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consist with the letter and the spirit of the constitution, are constitutional.” Since it would be “useful” and “convenient” to have a national bank in order for Congress to tax and spend and finance the army, therefore Congress had the power to charter a national bank.8

  Maryland had argued that even assuming that Congress had the power to charter a bank, surely the state had the power to tax it as it would any other private entity. After all, the Constitution was nothing more than a compact among the states that ceded only limited power to the federal government while reserving the sovereign powers of each state. Maryland’s case rested in part on the Kentucky and Virginia Resolutions, authored by Jefferson and Madison, which had asserted the states had the right to nullify federal laws.

  Marshall responded that the Constitution was not made by the states; it was ratified by the people directly acting through the ratification conventions, and it expressed the popular will: “The government of the Union, then . . . is emphatically, and truly, a government of the people. In form and in substance it emanates from them.”9 Marshall was building on the controversial proposition first posited by Justice Story in the Martin opinion three years earlier that the Constitution was made not as a compact among the states but organically by the whole nation.

  Marshall opined that when Congress chartered the Bank, its authority flowed from the popular will and was superior to the power of the states. Since the power to tax was equivalent to “the power to destroy,” states could not assert tax authority over it. To allow Maryland to tax a federal agency would be tantamount to allowing Maryland to tax residents of other states who had no voice in the political process.10 (Marshall had distorted the facts to make a point. Though the federal government owned a fifth of the bank’s shares, the national bank was not a federal government entity. It was a p
rivately owned profit-making enterprise, and a large portion of its shareholders were not even U.S. citizens.) Marshall once again introduced a new constitutional principle: that a government cannot impose burdens on people who are not represented. In a sense, he was echoing the cry of “no taxation without representation.” But Marshall was taking that principle a step further by asserting that the Supreme Court could strike down laws whenever legislators act in a way that frustrates democratic accountability.11 For example, Marshall was suggesting that if Congress were to pass a law that disenfranchised voters, it would impede democratic accountability, and the Supreme Court could strike it down under this principle.

  McCulloch was probably the most controversial decision that Marshall ever wrote. Marshall left no doubt as to the supremacy of the federal government over the states. Only months after the decision was issued, the appellant, James McCulloch, and the president of the Baltimore branch, James Buchanan, were indicted for stealing $1.4 million, confirming in the public’s mind that the bank was a corrupt institution.

  McCulloch inflamed the South’s worst fears that the federal government could end slavery. The proslavery Republican press repudiated Marshall’s opinion in the most extreme language. One paper condemned it as a “deadly blow” to state sovereignty that threatened the “welfare of the union.”12 Republican leaders in Virginia, particularly Judge Spencer Roane, coordinated a campaign to discredit Marshall. Writing in the Richmond Enquirer under the pen name Hampden, Roane blasted the McCulloch decision as unconstitutional.13

  McCulloch laid bare the debate over slavery and the question of whether slavery could be extended into the western territories. Jefferson accused the court of “constantly working underground to undermine the foundations of our confederated fabric.”14 Jefferson charged that the Federalists were dividing the states between free and slave in the name of “morality,” but he bluntly asserted that “[m]oral the question certainly is not.” In Jefferson’s view, the whole debate over whether to extend slavery was not in the interests of the slaves themselves. After all, whether slaves moved west or not, they remained slaves. Incredibly, Jefferson argued that “by spreading [the slaves] over a larger surface, their happiness would be increased.”15 In fact, many Virginians feared the increasing number of African Americans and hoped to dilute the threat by pushing slavery farther west away from their commonwealth.16