Marshall spoke as an absolutist. If Maryland were allowed “to retard, impede, burden, or in any manner control” constitutional acts of Congress like the Bank, the federal government would be prostrate at the foot of the states. The “supremacy” Americans had vested in the nation would be transferred to the states. But Americans “did not design to make their government dependent on the states.”
Some states believed otherwise, notably Virginia, Jefferson’s home, which was the last stronghold of the old Republicanism and the birthplace of the new, more aggressive states’ rights doctrine. Marshall too was of course a Virginian, but he was no “Virginia judge.” His McCulloch decision set off a heated debate over state sovereignty that would persist to the Civil War—and beyond. At a time when Congress was barreling toward a showdown over the extension of slavery into the territories, the subtext of Southern rage over McCulloch was the fear that Congress might seize the boundless “implied powers” Marshall afforded it to limit and gradually undermine and destroy slavery—and receive the Supreme Court’s stamp of approval for it.
Critics zeroed in on the decision’s assertion of judicial power. It seemed to them a dangerous complement to unbounded legislative license; between Congress and the Supreme Court, the states would be annihilated. Virginia judge Spencer Roane, the man Jefferson would have made chief justice of the Supreme Court in 1801 had Adams not beaten him to it with Marshall’s appointment, attacked the court’s “ judicial coup de main” in McCulloch. The power of the Supreme Court, Roane insisted, “does not extend to every thing; it is not great enough to change the constitution”—to destroy what had been a compact of the “several states, in their highest sovereign character” and erect on its ruins a consolidated and unlimited federal government. The power of federal judicial supremacy was nowhere to be found in the Constitution, Roane pointed out, yet Marshall had asserted the court’s authority to rule in all cases whatsoever.
While avoiding public comment, Jefferson cheered Roane on. “I subscribe to every tittle,” he wrote the judge. Decades earlier Jefferson had objected to Hamilton’s “liberal” interpretation of the Constitution’s “necessary and proper” clause. The doctrine of “implied powers,” he had argued, would erase the entire careful system of checks and balances and “reduce the whole instrument to a single phrase,” giving legislators “a distinct and independent power to do any act they please, which might be for the good of the Union.” Now the former president struggled to imagine how a court with five Republicans on it could render a decision like McCulloch: “An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge.” And so the Constitution became, he lamented to Roane, “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Marshall’s answer to critics of his court’s power came in Cohens, an 1821 case that again involved Virginia and again questioned the court’s jurisdiction over state courts. Dismissing the Supreme Court’s judgment in Martin, Virginia’s attorneys argued that the Constitution mandated a total separation between federal and state courts—“Let each operate within their respective spheres; and let each be confined to their assigned limits”—and warned that Marshall’s claims to “unacknowledged power” were undermining “the confidence of the people” and “exciting the hostility of the state governments. With them it is, to determine how long this government will endure.”
The chief justice met the challenge—and veiled threat—unflinchingly. Restating his doctrine of national supremacy, Marshall reasoned that as the federal government was supreme, so were “all its departments supreme” with respect “to objects of vital interest to the nation.” And if constitutional law was supreme, so must the Constitution’s highest court be supreme. The constitution and laws of a state were another matter. “So far as they are repugnant to the constitution and laws of the United States,” they must be “absolutely void.”
Marshall could not have made it plainer.
THE FRAMERS had given judges life tenure to insulate them from the whirligig of politics, but as John Marshall’s decades as chief justice lengthened, his independence from partisanship waned in step with his fading domination of the court. The political terrain was shifting dramatically against him. A so-called era of good feelings had followed the final collapse of the Federalist party in 1815. Almost everyone was a Republican now, but party labels meant little and partisanship was seen, much as it had been in the early days of the republic, as an expression of faction and bigotry. President James Monroe, reelected against token opposition in 1820, was Jefferson’s heir in name only, blurring Republican and Federalist principles in the cause of moderate and efficient public service.
But in the early 1820s, as the economy rebounded after the Panic of 1819, new cleavage lines of class and sectional interests sharpened, fueling a political awakening and the reemergence of partisan conflict in the battle for control of the national government. North and South clashed over slavery and states’ rights. The East, with its financial centers and industrializing cities, faced off against the West, where commercial agriculture was erasing wilderness. The 1824 presidential election proved a watershed, when four candidates—each calling himself a Republican—battled it out. None won a majority in the electoral college, so the decision fell to the House of Representatives. After bitter disputes and tough bargaining, John Quincy Adams emerged the winner. It was a Pyrrhic victory with, as Adams himself sadly noted, “perhaps two-thirds of the whole people adverse to the actual result.”
Most of those people had preferred Andrew Jackson, the fierce and volatile hero of the War of 1812, giving him 151,271 votes to Adams’s 113,122. The seeds of a revived party system were planted by Jackson’s thirst for revenge. Mobilizing rapidly after 1824, especially in the South and West, the new Democratic party assumed the Jeffersonian mantle of economic populism and states’ rights and tarred its foes—entrenched Eastern banking and manufacturing interests and their pawns in the federal government—with the “revival of Federalist heresies.”
Jackson’s Democrats framed his second run for the presidency in 1828 as, among other things, a referendum on that original and unrepentant Federalist, John Marshall. The chief justice himself let it be known that he would vote for the first time in decades and reportedly said, “I should consider the election of Jackson as a virtual dissolution of the government.” But Jackson, riding a surge of anti-court feeling in the South, was elected, beating President Adams by a landslide, and arrived at the White House spoiling for a fight. Like Jefferson, he was determined to challenge the court’s self-appointed role as the Constitution’s supreme interpreter, which, like Jefferson, he saw as a vehicle for federal aggrandizement at the expense of the states.
To Marshall, Jackson was an even more formidable foe. Jefferson’s revolution had been essentially conservative, an effort to restore the republic to what he saw as its first principles of limited government and majority rule. Now it was Marshall, determined to protect his nationalist legacy, who was the conservative in an age of change. And where Marshall had beaten back Jefferson’s challenge with a unified court, the leadership of the seventy-four-year-old chief justice was now not so steady. With President Monroe’s nomination of an independent-minded New Yorker, Smith Thompson, in 1823, and the emergence, under Jefferson’s prodding, of his first appointee, William Johnson, as the court’s first “great dissenter” after nearly two decades as a justice, Marshall was finding it more difficult to mass the brethren behind his sweeping nationalist decisions.
And Andrew Jackson was willing to hit at the very roots of Marshall’s authority. In 1832, the Supreme Court struck down a Georgia statute that conflicted with U.S. treaty obligations to the Cherokee nation. All Georgia laws dealing with the Cherokees, Marshall held, were unconstitutional; federal jurisdiction was absolute. Jackson refused to indicate that he would enforce the
court’s order with the armed force that might be needed to suppress Georgian resistance. He denied that the court could place in the president’s hands “a power to make war upon the rights of the States and the liberties of the country.” In a remark that was perhaps apocryphal but that accurately and memorably captured his stance, Jackson was reported to have said, “John Marshall has made his decision; now let him enforce it.” In fact, the president’s defiance encouraged Georgia’s. As a result, he boasted, “the decision of the supreme court fell still born.”
That same year, Jackson vetoed as unconstitutional the rechar- tering of the Bank of the United States—the bank John Marshall had emphatically declared constitutional in the landmark McCulloch decision. Drafted with the help of his attorney general, Roger Taney, Jackson’s veto message was a ringing declaration of presidential independence that echoed Jefferson’s departmentalist theory of constitutional interpretation. The Supreme Court could not “be permitted to control the Congress or the Executive when acting in their legislative capacities,” Jackson held; rather, each branch must “for itself be guided by its own opinion of the Constitution.” The court should be permitted “only such influence as the force of their reasoning may deserve.”
Marshall coped with the Jacksonian onslaught by sacrificing doctrinal purity, making compromises and adjustments to accommodate states’ rights challenges without yielding core principles. But his heart wasn’t in it. By 1831, ill and discouraged, unwilling to “hazard the disgrace of continuing in office, a mere inefficient pageant,” he was ready to retire. Still, it would depend on the 1832 presidential election. With Jackson’s reelection, Marshall became determined to hang on, to deny the president the chance to replace him with a man who might repudiate his life’s work.
Jackson was well aware that by naming the right men to the Supreme Court he could extend his influence long after his administration ended. Personal loyalty was paramount, but Jackson also wanted nominees whose “principles on the Constitution are sound, and well fixed”—that is, Jacksonian. His first appointment, in 1829, exposed other considerations. John McLean, as postmaster general, had obstructed the Jacksonian campaign to flush out Republican officeholders and replace them with Democratic loyalists. Jackson bumped him up to the Supreme Court to get him out of the way. McLean proved a moderate nationalist who mainly backed Marshall, but he also hoped to use his court seat as a base for a presidential run and brought an unwelcome “modern” air of partisan politicking into the court’s sanctum.
Marshall suffered a greater blow the same year when his closest friend and ally, Bushrod Washington, died after three decades on the bench. To replace him, Jackson named the man who had managed his Pennsylvania campaign in 1828, ex-congressman Henry Baldwin. Mentally unstable, Baldwin constantly quarreled with other justices and became a chronic dissenter, defending extremist states’ rights positions against Marshall’s nationalism.
With such colleagues, Marshall was unable to sustain the court’s façade of unanimity. Decision-making became less collective and more individualistic. The chief justice was even obliged in 1834 to acknowledge publicly that the seven-member court now operated on the radical Jeffersonian principle of majority rule, with four votes needed for a decision. This “revolutionary spirit,” as Marshall called it, was the cause of much “inconvenience and mischief.” Even more embarrassing, in a number of constitutional cases, no four justices could agree on a single position and decisions were deferred for years. And in one decision that upheld the power of state governments to revoke or modify private contracts in bankruptcy proceedings, John Marshall found himself, for the first and only time in his thirty-five years on the bench, in the minority in a constitutional case, a dissenter.
These were indeed strange and troubling times for a chief justice who, over the decades, had so closely identified his own authority with the power of the federal government, his nationalism with the Union. Politicians of Marshall’s era had wavered, compromised, and contradicted themselves in the struggle to define the dividing line between federal and state power. President Jefferson had ventured grand, even radical assertions of national power in the purchase of France’s vast Louisiana territories in 1803 and with the 1807-08 Embargo Acts that barred all American exports to insulate the United States from Europe’s wars. It was only after his retirement back in Virginia that he indulged in the states’ rights extremism of Spencer Roane and company.
But Marshall, secure in his seat on the bench, accountable not to voters or to political rivals but only to his own constitutional faith, never wavered. He built the Supreme Court into a driving force for his nationalism, and more than any man since the Founding, he had shaped the Constitution into an image of his own beliefs. So it was small wonder that as his powers ebbed, he should see that not only his judicial legacy was at stake, but the United States itself. “I yield slowly and reluctantly to the conviction that our constitution cannot last,” he wrote in 1832 to his ally Justice Story. The case in the South was “desperate” and even the North now seemed doubtful. “The union has been prolonged thus far by miracles,” but he was afraid “they cannot continue.”
CHAPTER THREE
The Dred Decision
WHEN CHARLES DICKENS visited Washington in 1842, he found a place of “slavery, spittoons, and senators—all three are evils in all countries.” His indignation rose as he stood with a congressman looking out a window of the Capitol—the Temple of Equality, as the congressman ironically called it. In the open street below, they saw “a gang of male and female slaves for sale, warranted to breed like cattle, linked to each other by iron fetters.” Where now, Dickens asked, was Equality and Liberty?
Slavery had long been established in North America, with the English beginning the importation of Africans early in the seventeenth century. By the end of the 1780s, after the Declaration of Independence and the adoption of the Constitution, African Americans in the Middle Atlantic and Southern states numbered over 700,000, nearly all of them slaves, and 17,000 in New England, about a quarter of whom were slaves. Many Northern writers attacked this bondage as cruel and unchristian, but only Quaker Pennsylvania, which Dickens also visited, had passed an act of gradual abolition.
Since the revolution, slavery had been a flash point between North and South, the single issue that threatened to make the union of the states impossible. It fueled the South’s resistance to Marshall’s nationalism, the fear that the federal government would one day “interfere” with—even abolish—slavery. The South sought, if not to turn the United States into a “slaveocracy,” as Northern abolitionists warned, then at least to secure slavery’s constitutional status and the right to extend it into the great expanses of the western territories. The North sought, if not to abolish slavery, then to confine it to the Southern states where it already existed and where, isolated, it might wither and die.
For decades, American political leaders struggled to find a balance between these positions, beginning with the Framers themselves, whose Constitution made union possible by avoiding any explicit mention of slavery, thus leaving its status—and that of the slaves themselves—undefined. The Framers, though, allowed the South, for purposes of apportionment in the House of Representatives, to add three fifths of what the Constitution termed “all other Persons” to their total of free persons.
That provision augmented the South’s representation in the House by 30 percent, crucial because it was Congress that bore the burden of striking that balance between the sections. Congressmen fought repeated battles over slavery’s extension into the territories and whether new states should be “free” or “slave.” The first grand settlement was the Missouri Compromise of 1820, which admitted Missouri as a slave state and Maine as a free state, while seeking to head off future conflict by banning slavery from the huge territory acquired in 1803 by Jefferson’s Louisiana Purchase north of an agreed-upon line. This set the pattern for three decades. Periods of calm were shattered by desperate slave rebellions in
the South and by outrage in the North over the capture of fugitive slaves who were dragged from freedom back into bondage. There was violence and talk of war—but not yet war.
By the late 1840s, though, the chasm between North and South had become so wide that further compromise seemed nearly impossible. The balancing act over slavery, maintained by evasion and ambiguity, between the Northern and Southern branches of the two major parties—the dominant Democrats and the Whig party that had emerged in the 1830s to represent the old Federalist strain—had begun to collapse. Northern abolitionists from both parties fused into the first antislavery party, Free Soil, and opposed further extension of slavery as unconstitutional. Southern Democrats, ever more insistent on the South’s “rights,” argued that it was congressional interference with slavery that was unconstitutional. That left little middle ground. In 1846, Pennsylvania congressman David Wilmot proposed that slavery be excluded from all territories acquired in the war with Mexico that began that year after the American annexation of Texas. The Wilmot Proviso and the vast Mexican cession—500,000 square miles, including California—reignited the issue of national power over slavery, driving a sharp wedge between Northern and Southern Democrats, and making a new grand bargain imperative if the Union was to survive.
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