Judicial Nationalism

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Judicial Nationalism


Federalism. Many of the most important Supreme Court decisions between 1815 and 1850 centered on the relationship between the federal government and the states. Several landmark decisions during the first decade of the period contributed significantly to the strengthening of the federal government. This judicial nationalism was less an expansive than a defensive tendency; rather than identifying new spheres of federal action, the Courts decisions sought to prevent the states from absorbing and fragmenting federal powers. Nevertheless, the assertion of federal authority was highly controversial, especially during 18191821. Fears that the Marshall court was consolidating power in the federal government played an important part in the coalescence of the Jacksonian Democrats on a platform of strict construction of the Constitution. In response the Court adopted a more moderate course in the late 1820s and 1830s. Under Chief Justice Roger B. Taney the Court went on to articulate new limits to the power of the national institution that the Marshall Court had most zealously sustained, the federal judiciary.

Supreme Court Supremacy. The fundamental nature of sovereignty in the federal Union was at the heart of litigation over the authority of the United States Supreme Court to review decisions by the highest state courts. The Judiciary Act of 1789 provided for Supreme Court review in cases in which state courts found federal laws to be invalid and those in which state courts rejected an argument that a state law was repugnant to the constitution, or laws of the United States. The Supreme Court addressed this provision in Martin v. Hunters Lessee (1816), a case involving title to land that had been owned by Loyalists during the Revolutionary War. After the Supreme Court reversed a ruling by the Virginia Court of Appeals that state property laws took precedence over the Treaty of Paris in determining ownership of the land, the Virginia court found that the review powers outlined in the Judiciary Act of 1789 violated the Constitution. The Supreme Court, in turn, found that the review powers established by Congress were not merely consistent with the Constitution but compelled by it: the country could not function without a central arbiter to resolve issues of federal law. Although Virginia maintained that the state was a sovereign partner in the Union, with no less authority than the United States Supreme Court to interpret federal law, Justice Storys majority opinion observed 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. Story reasoned that the Constitution served to invest the general government with all the powers which they might deem proper and necessary, including the power to protect federal law from misinterpretation by states.

McCulloch v. Maryland . The assertion of judicial nationalism that attracted the most attention during the period was McCulloch v. Maryland (1819), which at a time of economic upheaval focused on the most visible federal economic institution, the Second Bank of the United States. The first issue in the case, whether Congress had authority under the Constitution to charter the bank, was important not only in the instance of the bank, the constitutionality of which had not been seriously

challenged for many years, but even more for other debates over the implied powers of Congress, especially the controversy over federally funded internal improvements projects such as roads and canals. Writing for the Court, Marshall took a broad view of the implied powers enjoyed by Congress under the Necessary and Proper clause. As long as legislation pursued a legitimate goal and did not violate a specific constitutional prohibition, Marshall wrote, any method Congress chose to achieve its ends was valid. Marshall also wrote in broadly national terms on the second issue in McCulloch, whether states had the power to tax the bank. Marshall emphasized that the power to tax involves the power to destroy and denied states the power to drive out the Bank of the United States with taxes that would reserve banking for state-chartered institutions. The states, Marshall maintained, have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress.

Protest. The judicial nationalism of Martin v. Hunters Lessee and McCulloch v. Maryland sparked several different attacks by advocates of state sovereignty. McCulloch prompted a vigorous newspaper debate, into which Marshall entered in a series of anonymous essays. The aging Jefferson emerged from retirement to complain that the judiciary was a subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederate fabric. With Jeffersons encouragement Justice William Johnson soon announced that he would break Court ranks and issue individual opinions in constitutional cases. The Virginia legislature and the influential Richmond Enquirer set out to reverse or limit Martin in a subsequent case, Cohens v. Virginia (1821), but Marshalls opinion in Cohens firmly upheld the principles of Supreme Court jurisdiction established in Martin. Enquirer editor Thomas Ritchie soon shifted his constitutional tactics, joining with Martin Van Buren of New York to form the national Democratic Party. From the outset the organization vowed opposition to the McCulloch doctrine of implied powers, culminating in President Andrew Jacksons successful war against the Bank of the United States and the resistance of the party to internal improvements. This circumvention of the Court was supplemented by direct assaults. After the Court found in Green v. Biddle (1821) that Kentucky land laws violated the Contract clause, Sen. Richard Johnson of Kentucky proposed a constitutional amendment that would have shifted to the Senate the power to resolve challenges to the constitutionality of state laws.

Concurrent Sovereignty. If, as McCulloch indicated, state legislation would not be permitted to interfere with congressional enactments, the question remained whether states could regulate activities over which Congress enjoyed an authority that it had not chosen to exercise. Analysis of this recurring issue began with Gibbons v. Ogden (1824), a popular decision that helped to quell the controversy surrounding the Court. Gibbons out of the steam transportation that was transforming American commerce. The New York legislature had granted inventor Robert Fulton and Robert Livingston an exclusive license to operate steamboats in New York waters. Former New Jersey governor Aaron Ogden, who purchased a franchise under this license to conduct a ferry between Staten Island and Manhattan, sued to fend off competition from an unauthorized ferry owned by Thomas Gibbons and piloted by young Cornelius Vanderbilt, the future railroad tycoon. James Kents ruling in the New York Court of Chancery held that the state of New York had the power to regulate commerce in a navigable interstate waterway as long as the states laws did not directly collide with congressional legislation. Daniel Webster, seeking reversal in the Supreme Court, maintained that power to regulate interstate commerce belonged to Congress and Congress alone, under Article I, Section 8 of the Constitution. Marshalls majority opinion sought a compromise by finding that Congress in fact had enacted a statute that authorized Gibbonss ferry to ply the coastal waters; since Congress had acted, the touchy issue of whether states could regulate interstate commerce in the absence of congressional action was avoided. The decision not to assert exclusive congressional authority over interstate commerce significantly tempered the judicial nationalism of recent years, The view that the states enjoyed a concurrent sovereignty over interstate commerce, when not in direct conflict with federal legislation, continued to grow. The doctrine may be said to have reached maturity with Cooley v. Board of Wardens of the Port of Philadelphia (1851), in which the Court held that local pilotage regulations, including the assessment of fees, did not violate Congresss control over interstate commerce.


Chief Justice John Marshalls opinion for the Supreme Court in McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316 (1819), was one of his, most impor-., tant decisions. It was also one of the best examples of his philosophy of jurisprudence, in that he cited no judicial precedents, but instead relied on a close reading of the constitutional text and on inferences drawn from what he identified as the goals of the framers:

This government is acknowledged by all to be one of enumerated powers. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. In considering this question, then we must never forget, that it is a constitution we are expounding.

Bill of Rights. Barron v. Mayor of Baltimore (1835) was the most important example of the restrained nationalism that marked the latter years of the Marshall Court. A dock owner sued the city of Baltimore (which had damaged his wharf while paving streets) under the Fifth Amendment of the Constitution, which provides that private property shall not be taken for public use without just compensation. The case turned on whether the Fifth Amendment, and more broadly the Bill of Rights, applied to state governments (and the cities they created). If it did, state government activities would have been significantly restricted; indeed, the application of the Bill of Rights to the states would prove to be one of the major themes of American constitutional development after the adoption of the Fourteenth Amendment. But the Court in Barron instead attached more importance to the history of the Bill of Rights, which had developed primarily to assuage fears that the federal government would be too powerful Observing that the case was one of great importance, but not of much difficulty, the Court declined to use the Bill of Rights to restrain the state governments.

Federal Common Law. The last great triumph of judicial nationalism during the years from 1815 to 1850 was Justice Storys opinion for the Court in Swift v. Tyson (1842), which has sparked more scholarly commentary than any other decision of the period. The case illustrated the diversity jurisdiction of the federal courts, that is, the power of federal courts to hear lawsuits between citizens of different states. The Judiciary Act of 1789 provided that federal courts should apply state law in deciding diversity cases. In Swift v. Tyson, however, the Court ruled that the Judiciary Act only obliged federal courts to follow enactments by state legislatures; decisions by state courts were not law, Justice Story wrote, and therefore did not bind federal courts. As a result federal courts could formulate their own rules of decision in the many areas not governed by statutes, and in the following years a federal common law emerged in such crucial areas as the administration of wills and the allocation of mineral rights. Almost a full century after Swift v. Tyson the Supreme Court overturned the ruling and held in Erie Railroad Co. v. Tompkins (1938) that federal courts considering diversity cases were obliged to follow applicable state-court decisions.

Limits. The expansion of federal judicial power dramatized by Swift v. Tyson was the most consistent theme in the nationalism of the Supreme Court, for even when the Court affirmed state legislation or state-court rulings, federal decision-making authority was enhanced. In Luther v. Borden (1849), however, the Court sought to define limits to its own competence. The case grew out of the so-called Dorrs Rebellion in Rhode Island, in which a group of suffrage reformers called a Peoples Convention to replace the state charter with a new constitution, leading to the election of Thomas Dorr as governor. But the existing government called out the state militia to suppress the Dorrites, who then appealed to Congress and the Supreme Court to enforce Article IV, Section 4 of the Constitution, which states that the United States shall guarantee to every State in this Union a Republican Form of Government. Congress refused to act, and Chief Justice Roger Taney used this opportunity to elaborate the doctrine that some constitutional issues, including the enforcement of Article IV, Section 4, are political questions to be resolved by Congress rather than the courts. This doctrine became an important self-imposed limit on the authority of the federal judiciary.


Laurence H. Tribe, American Constitutional Law, second edition (Mineola, N.Y.: Foundation Press, 1988);

Edward G. White, The Marshall Court and Cultural Change, 18151850 (New York: Macmillan, 1988).

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