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COHENS v. VIRGINIA 6 Wheat. 265 (1821)

In the rancorous aftermath of mcculloch v. maryland (1819), several states, led by Virginia and Ohio, denounced and defied the Supreme Court. State officers of Ohio entered the vaults of a branch of the Bank of the United States and forcibly collected over $100,000 in state taxes. (See osborn v. bank of the united states.) Virginia's legislature resolved that the Constitution be amended to create "a tribunal for the decision of all questions, in which the powers and authorities of the general government and those of the States, where they are in conflict, shall be decided." Widespread and vitriolic attacks on the Court, its doctrine of implied powers, and section 25 of the judiciary act of 1789 showed that martin v. hunter ' s lessee (1816) and McCulloch were not enough to settle the matters involved, especially as to the jurisdiction of the Court over state acts and decisions in conflict with the supreme law of the land as construed by the Court. Accordingly a case appears to have been contrived to create for Chief Justice john marshall an opportunity to reply officially to his critics and to reassert both national supremacy and the supreme appellate powers of his Court.

Two brothers surnamed Cohen sold lottery tickets in Norfolk, Virginia, contrary to a state act prohibiting their sale for a lottery not authorized by Virginia. The Cohens sold tickets for a lottery authorized by an act of Congress to benefit the capital city. In Norfolk the borough court found the defendants guilty and fined them $100. By Virginia law, no appeal could be had to a higher state court. The Cohens, prosperous Baltimore merchants who could easily afford the paltry fine, claimed the protection of the act of Congress and removed the case on writ of error from the local court to the highest court of the land; moreover they employed the greatest lawyer in the nation, William Pinckney, whose usual fee was $2,000 a case, and another distinguished advocate, David B. Ogden, who commanded a fee of $1,000. More was at stake than appeared. "The very title of the case," said the Richmond Enquirer, "is enough to stir one's blood"—a reference to the galling fact that the sovereign state of Virginia was being hauled before the Supreme Court of the United States by private individuals in seeming violation of the eleventh amendment. The state governor was so alarmed that he notified the legislature, and its committee, referring to the states as "sovereign and independent nations," declared that the state judiciaries were as independent of the federal courts as the state legislatures were of Congress, the twenty-fifth section of the 1789 notwithstanding. The legislature, having adopted solemn resolutions of protest and repudiating federal judicial review, instructed counsel representing Virginia to argue one point alone: that the Supreme Court had no jurisdiction in the case. Counsel, relying on the Eleventh Amendment to argue that a state cannot be sued without its consent, also contended that not a word in the Constitution "goes to set up the federal judiciary above the state judiciary."

Marshall, for a unanimous Court dominated by Republicans, conceded that the main "subject was fully discussed and exhausted in the case of Martin v. Hunter," but that did not stop him from writing a fifty-five-page treatise which concluded that under section 25 the Court had jurisdiction in the case. Marshall said little that was new, but he said it with a majestic eloquence and a forcefulness that surpassed joseph story 's, and the fact that the Chief Justice was the author of the Court's nationalist exposition, addressed to states rights ' advocates throughout the country, added weight and provocation to his utterances. He was sublimely rhapsodic about the Constitution and the Union it created, sarcastic and disparaging in restating Virginia's position. Boldly he piled inference upon inference, overwhelming every particle of disagreement in the course of his triumphs of logic and excursions into the historical record of state infidelity. And he had a sense of the melodramatic that Story lacked, as when Marshall began his opinion by saying that the question of jurisdiction "may be truly said vitally to affect the Union." The defendant in error—Virginia—did not care whether the Constitution and laws of the United States had been violated by the judgment of guilt that the Cohens sought to have reviewed. Admitting such violation, Virginia contended that the United States had no corrective. Virginia, Marshall continued, maintained that the nation possessed no department capable of restraining, peaceably and by authority of law, attempts against the legitimate powers of the nation. "They maintain," he added, "that the constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised in the last resort by the courts of every state of the Union." Virginia even maintained that the supreme law of the land "may receive as many constructions as there are states.…" Marshall confronted and conquered every objection.

Quickly turning to Article III, Marshall observed that it authorizes Congress to confer federal jurisdiction in two classes of cases, the first depending on the character of the case and the second on the character of the parties. The first class includes "all" cases involving the Constitution and federal laws and treaties, "whoever may be the parties," and the second includes all cases to which states are parties. By ratifying the Constitution the states consented to judicial review in both classes of cases, thereby making possible the preservation of the Union. That Union is supreme in all cases where it is empowered to act, as Article VI, the supremacy clause, insures by making the Constitution and federal law the supreme law of the land. The Court must decide every case coming within its constitutional jurisdiction to prevent the supreme law of the land from being prostrated "at the feet of every state in the Union" or being vetoed by any member of the Union. Collisions between the United States and the states will doubtless occur, but, said Marshall, "a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it." To prevail, the government of the Union derived from the Constitution the means of self-preservation. The federal courts existed to secure the execution of the laws of the Union. History proved, Marshall declared, that the states and their tribunals could not be trusted with a power to defeat by law the legitimate measures of the Union. Thus the Supreme Court can take appellate jurisdiction even in a case between a state and one of its own citizens who relied on the Constitution or federal law. Otherwise Article III would be mere surplusage, as would Article VI. For the Court to decline the jurisdiction authorized by Article III and commanded by Congress would be "treason to the Constitution."

Although Marshall's rhetoric certainly addressed itself, grandiosely, to the question of jurisdiction, his critics regarded all that he had declared thus far as obiter dicta, for he had not yet faced the Eleventh Amendment, which Virginia thought concluded the case on its behalf. Upon finally reaching the Eleventh Amendment question, Marshall twisted a little history and chopped a little logic. The amendment, he said, was adopted not to preserve state dignity or sovereignty but to prevent creditors from initiating suits against states that would raid their treasuries. The amendment did not, therefore, apply to suits commenced by states and appealed by writ of error to the Supreme Court for the sole purpose of inquiring whether the judgment of a state tribunal violated the Constitution or federal law.

The argument that the state and federal judiciaries were entirely independent of each other considered the Supreme Court as "foreign" to state judiciaries. In a grand peroration, Marshall made his Court the apex of a single judicial system that comprehended the state judiciaries to the extent that they shared a concurrent jurisdiction over cases arising under the supreme law of the land. For most important purposes, Marshall declared, the United States was "a single nation," and for all those purposes, its government is supreme; state constitutions and laws to the contrary are "absolutely void." The states "are members of one great empire—for some purposes sovereign, for some purposes subordinate." The role of the federal judiciary, Marshall concluded, was to void state judgments that might contravene the supreme law; the alternative would be "a hydra in government."

Having sustained the jurisdiction of the Court, Marshall offered a sop to Virginia: whether the congressional lottery act intended to operate outside the district of columbia, he suggested, depended on the words of that act. The case was then reargued on its merits, and Marshall, again for a unanimous Court, quickly sustained the Cohens' conviction: Congress had not intended to permit the sale of lottery tickets in states where such a sale was illegal.

Virginia "won" its case, just as Madison had in Marburyv. Madison (1803), but no one was fooled this time either. The governor of Virginia in a special message to his legislature spoke of the state's "humiliation" in having failed to vindicate its sovereign rights. A legislative committee proposed amendments to the Constitution that would cripple not only the judicial power of the united states but also (reacting to McCulloch) the powers of Congress in passing laws not "absolutely" necessary and proper for carrying out its enumerated powers. In the United States Senate, enemies of the Court proposed constitutional amendments that would vest in the Senate appellate jurisdiction in cases where the laws of a state were impugned and in all cases involving the federal Constitution, laws, or treaties. Intermittently for several years senators introduced a variety of amendments to curb the Court or revoke section 25, but those who shared a common cause did not share a common remedy, though green v. biddle (1823) and osborn v. bank of the united states (1824) inflamed their cause.

In Virginia, where the newspapers published Marshall's long opinion to the accompaniment of scathing denunciations, spencer roane and john taylor returned to a long battle that had begun with the Martin case and expanded in the wake of McCulloch. Roane, as "Algernon Sydney," published five articles on the theme that Cohens "negatives the idea that the American states have a real existence, or are to be considered, in any sense, as sovereign and independent states." He excoriated federal judicial review, implied powers, and the subordination of the states, by judicial construction, to "one great consolidated government" that destroyed the equilibrium of the Constitution, leaving that compact of the states nonexistent except in name. Taylor's new book, Tyranny Unmasked (1822), continued the themes of his Construction Construed (1820), where he argued that the "federal is not a national government: it is a league of nations. By this league, a limited power only over persons and property was given to the representatives of the united nations." The "tyranny" unmasked by the second book turned out to be nationalist programs, such as the protective tariff, and nationalist powers, including the power of the Supreme Court over the states.

thomas jefferson read Roane and Taylor, egged them on, and congratulated them for their orthodox repudiation of the Court's "heresies." To Justice william johnson, who had joined Marshall's opinion, Jefferson wrote that Roane's articles "appeared to me to pulverize every word which had been delivered by Judge Marshall, of the extra-judicial part of his opinion," and to Jefferson "all was extra-judicial"—and he was not wholly wrong—except the second Cohens opinion on the merits. Jefferson also wrote that the doctrine that courts are the final arbiters of all constitutional questions was "dangerous" and "would place us under the despotism of an oligarchy." Recommending the works of Roane and Taylor to a friend, Jefferson militantly declared that if Congress did not shield the states from the dangers originating with the Court, "the states must shield themselves, and meet the invader foot to foot." To Senator nathaniel macon of Virginia, Jefferson wrote that the Supreme Court was "the germ of dissolution of our federal government" and "an irresponsible body," working, he said, "like gravity, by day and night, gaining a little today and a little tomorrow, and advancing its noiseless step, like a thief over the fields of jurisdiction, until all shall be usurped from the States, the government of all becoming a consolidated one."

james madison deplored some of the Court's tactics, especially its mingling of judgments with "comments and reasoning of a scope beyond them," often at the expense of the states; but Madison told Roane flatly that the judicial power of the United States "over cases arising under the Constitution, must be admitted to be a vital part of the System." He thought Marshall wrong on the Eleventh Amendment and extreme on implied powers, but, he wrote to Roane, on the question "whether the federal or the State decisions ought to prevail, the sounder policy would yield to the claims of the former," or else "the Constitution of the U.S. might become different in every State."

The public reaction to Cohens depressed Marshall, because, as he wrote to Story, the opinion of the Court "has been assaulted with a degree of virulence transcending what has appeared on any former occasion." Roane's "Algernon Sydney" letters, Marshall feared, might be believed true by the public, and Roane would be hailed as "the champion of state rights, instead of being what he really is, the champion of dismemberment." Marshall saw "a deep design to convert our government into a mere league of States.… The attack upon the Judiciary is in fact an attack upon the Union." The whole attack originated, he believed, with Jefferson, "the grand Lama of the mountains." An effort would be made, predicted Marshall, accurately, "to repeal the 25th section of the Judiciary Act." Doubtless the personal attacks on him proved painful. A bit of anonymous doggerel, which circulated in Virginia after Cohens, illuminates public feeling.

Old Johnny Marshall what's got in ye
To side with Cohens against Virginny.
To call in Court his "Old Dominion."
To insult her with your foul opinion!
I'll tell you that it will not do
To call old Spencer in review.
He knows the law as well as you.
And once for all, it will not do.
Alas! Alas! that you should be
So much against State Sovereignty! You've thrown the whole state in a terror,
By this infernal "Writ of Error."

The reaction to Cohens proves, in part, that the Court's prose was overbroad, but Marshall was reading the Constitution in the only way that would make the federal system operate effectively under one supreme law.

Leonard W. Levy
(1986)

Bibliography

Beveridge, Albert J. 1916–1919 The Life of John Marshall, 4 vols. Vol. IV: 340–375. Boston: Houghton-Mifflin.

Hains, Charles Grove 1944 The Role of the Supreme Court in American Government and Politics, 1789–1835. Pages 427–461. Berkeley: University of California Press.

Konefsky, Samuel J. 1964 John Marshall and Alexander Hamilton. Pages 93–111. New York: Macmillan.

Cohens v. Virginia 6 Wheat. 265 (1821)

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