by Edward Spannaus
Fifth of a series. The first four parts of this series, devoted to “John Marshall and the American System” can be found here.
July 23, 2018–With the help of American System champion Henry Clay and his supporters, John Quincy Adams was elected President in early 1825, after the election had been thrown into the House of Representatives. Although John Marshall had refrained from voting in presidential elections to avoid any imputation of partisanship, he was known to support Clay. Marshall’s greatest fear was Jackson and the irrational populism which Jackson incited – populism which was aimed at the destruction of the American System of Hamilton and Clay.
The elevation of John Quincy Adams to the presidency in 1824 launched an explosive growth of internal improvements – as we noted in the most recent article in this series. But in the 1828 election, the enemies of the American System, North and South, succeeded in putting Jackson in the White House, which alarmed the Chief Justice.
From this point on, John Marshall’s efforts were increasing defensive, directed to protecting the America System of economic development, and the Constitution itself, against what he regarded as a mortal threat which became manifest in the Jackson Administration. Not all these matters came directly before the Supreme Court (e.g. tariffs or nullification), but Marshall’s thoughts about these subjects were often reflected in his correspondence, and provide context for a number of his later court opinions.
For example, Marshall’s concerns over the forces pulling the nation apart, were expressed in a December 1828 letter to Associate Justice Joseph Story. “I begin to fear that our Constitution is not doomed to be so long lived as its real friends had hoped,” Marshall wrote. “I shall not live to witness and bewail the consequences of those furious passions which seem to belong to man.”
Marshall was particularly alarmed by the vicious attacks against John Quincy Adams and his Secretary of State Henry Clay made by Jackson’s riled-up backers. Although Marshall avoided any public statement regarding the 1828 election campaign, a Democratic paper in Maryland quoted him as saying that he intended to vote in that year’s election for the first time in many years, and that “Should Jackson be elected, I would look upon the government as virtually dissolved.”
In a letter to the publisher of the Richmond Whig and Advertizer, Marshall said that the Maryland paper was misinformed, although he conceded that he might depart from his usual abstention in the election this time, “from the strong sense I felt of the injustice of the charges of corruption against the president and secretary of state.”
According to Marshall biographer Jean Edward Smith, Clay was touched by Marshall’s rejoinder, and immediately wrote to him:
I know that you were moved by your well known love of truth and justice, but that does not abate the force of my personal obligation to you. Indeed, I regret that it became necessary that you should have to say publicly one word on the agitating topic of the day, because it will subject you to a part of that abuse which is indiscriminately applied to … everything standing in the way of the elevation of a certain individual [i.e. Andrew Jackson].
Replying to a letter from Joseph Story, Marshall declared that he was
… a great deal provoked at the publication in the Marylander, not because I have any objection to its being known that my private judgment is in favor of the reelection of Mr. Adams, but because I have great objections to being represented in the character of a furious partisan. Intemperate language does not become my age or office and is foreign to my disposition and habits. I was therefore not a little vexed at a publication which represented me as using language which could only be uttered by an angry party man.
This was a clear reflection of the beliefs of the Founders – of which Marshall was one of the last survivors – that the disease of faction and partisanship was the greatest danger to the republic. The blind and furious partisanship rampant today, demonstrates the truth of their observations. (See Madison’s warnings in Federalist No. 10.)
What the Framers of the Constitution intended
In the 1827 term, another case involving the Commerce Clause came before the Supreme Court, giving Marshall an opportunity to reinforce his ruling in Gibbons vs. Ogden. In Gibbons (the “Steamboat case”), Marshall had established the supremacy of Congress regarding commerce between the states; now, in Brown vs. Maryland, he affirmed the absolute power of Congress over trade with foreign nations. In Brown, the high court struck down a Maryland statute which required importers of foreign goods to take out a state license before selling the foreign goods.
In the ruling, Marshall reviewed the purpose of the Constitution’s prohibition on the states from laying duties on imports. Few subjects, he notes, created such excitement, and aroused such jealousies, as the manner in which the states had exercised this power prior to the adoption of the Constitution.
The Framers, according to Marshall, said that this was a power which no states should exercise; the interests of all would be best served by placing this power exclusively with Congress. He reminded his readers and listeners of the conditions which brought about the creation and adoption of the federal Constitution, and did this is a manner which reminds us of Hamilton’s impassioned arguments in the Federalist papers.
The oppressed and degraded state of commerce previous to the adoption of the Constitution can scarcely be forgotten. It was regulated by foreign nations with a single view to their own interests, and our disunited efforts to counteract their restrictions were rendered impotent by want of combination. Congress, indeed, possessed the power of making treaties; but the inability of the Federal Government to enforce them had become so apparent as to render that power in a great degree useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving the control over this important subject to a single government.. It may be doubted whether any of the evils proceeding from the feebleness of the Federal Government contributed more to that great revolution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, a matter of surprise that the grant should be as extensive as the mischief, and should comprehend all foreign commerce, and all commerce among the States.
And finally, Marshall took up the argument made by the attorneys for Maryland (among whom was the future Chief Justice Roger Taney) that laying such duties on imports, falls within the power of the states to tax their citizens. Marshall admitted this power to be “sacred,” but said that yet it cannot be used to obstruct the exercise of a power given to Congress, or to restrain the operation of any law passed by Congress. Here, he appropriately refers back to his earlier ruling in McCulloch vs. Maryland.
A second important constitutional case that came before the Court in the 1827 term, Ogden vs. Saunders, involved state bankruptcy legislation – and in this case, for the first and only time, Marshall found himself in the minority as a dissenter on a constitutional issue. This was despite the fact that every appointment to the Supreme Court after 1801 was a Republican – although a number of them had Federalist backgrounds and were nationalist in outlook.
Earlier, in Sturges vs. Crowninshield, the Court had held that a state insolvency law that discharged the debtor from a contract entered into prior to the passage of the law, was repugnant to the U.S. Constitution. The issue in this case was whether the same would be true in regard to a debt entered into after the passage of the law. Marshall, in the minority along with Associate Justices Story and Duvall, held that this also constituted a state impairment of a contract in violation of the Federal Constitution.
Here, once again, Marshall began by pointing to the nature of the Union: “that it is intended to make us, in a great measure, one people, as to commercial objects,” and that for these purposes, “the lines of separation between the States are in many respects, obliterated.” Section 10 of Article I of the Constitution enumerates those cases in which action by the States is entirely prohibited, which include entering into treaties, coining money or emitting bills of credit, and impairing the obligation of contracts. There are no exceptions to these prohibitions.
Marshall then launched into a long discussion of the nature of contracts and the obligation which arises from the agreement between the parties. The reasoning that he set forth, he pointed out, was “much strengthened by the authority of those writers on natural and national law whose opinions have been viewed with profound respect by the wisest men of the present and past ages.” And he added, when we look at what the Framers of our Constitution read in early life, we must assume that they “were intimately acquainted with the writings of those wise and learned men whose treatises on the laws of nature and nations have guided public opinion on the subjects of obligation and contracts.” We assume, Marshall continues, that the Framers took the same view, and that the language they used in writing the Constitution reflects this view of obligation and contracts.
We cannot look back to the conditions at the time of the Constitutional Convention, Marshall declared, without being sensible to the great importance which the Framers attached to Section 10 of Article I. The states had so changed the relative situation of creditor and debtor, and interfered with the obligation of contracts, that it had acted to “destroy all confidence between man and man,” and threatened the very existence of credit.
The mischief had become so great, so alarming, as not only to impair commercial intercourse, and threaten the existence of credit, but to sap the morals of the people, and destroy the sanctity of private faith. To guard against the continuance of the evil was an object of deep interest with all the truly wise, as well as the virtuous, of this great community, and was one of the important benefits expected from a reform of this government.
Alexander Hamilton would no doubt wholeheartedly concur.
Slavery: Immoral, but not illegal
We have already referred above to Marshall’s inadvertent intervention in the 1828 election, with the publication of his alleged comments disparaging Andrew Jackson. His forebodings concerning a dissolution of the Union were reinforced by his reluctant participation as the delegate from Richmond, in the Virginia Constitutional Convention of 1829-30, convened to rewrite the instrument adopted 53 years earlier, in 1776. At the convention, questions of suffrage, slavery, and the independence of the judiciary were of the greatest concern to Marshall.
Marshall believed deeply that the continued existence of slavery portended disaster for the United States, and he saw no easy solution to the problem. He abhorred slavery, but he also rejected what he considered the fanaticism of the abolitionists. He came to the conclusion that colonization–that is, free the slaves and promoting their emigration to Africa–was the only workable solution. Like many of the leading Federalists and Whigs, he was a member of the American Colonization Society, and was president of its Virginia branch.
In an 1827 letter to Lafayette, he called slavery “one of the foulest stains on the history of Christendom,” but despaired of the southern states ever being willing to give it up.
He viewed slavery as immoral, but recognized that it was not illegal – having been recognized in the Constitution. The first time slavery came before the Marshall Court was in the 1825 case The Antelope, involving a foreign-flagged slave ship intercepted off the southern coast of the United States. Both Spain and Portugal claimed the slaves were the property of their traders.
Speaking for a unanimous court, Marshall stated that although the slave trade violated natural law, it could not be said to violate the law of nations, since many nations still consider it legal. Any nation can renounce it, but no nation can renounce it for others. All nations are equal, and no one nation “can rightfully impose a rule on another … none can make a law of nations.” This was at a time when national sovereignty was considered absolute, unlike today – and therefore the Court believed that the slave trade remained lawful for those nations who had not renounced it.
The second time the question of slavery came before the court was in the 1829 case Boyce vs. Anderson. This case grew out of liability claims following a steamboat accident in which a number of slaves were drowned, and the question was: Is a slave a person, or merchandise? To the chagrin of southern slave-owners, Marshall held that slaves were persons, not cargo.
A slave has volition, and has feelings which cannot be entirely disregarded. These properties cannot be overlooked in conveying him from place to place. He cannot be stowed away as a common package. Not only does humanity forbid this proceeding, but it might endanger his life or health…. In the nature of things, and in his character, he resembles a passenger, not a package of goods. It would seem reasonable, therefore, that the responsibility of the carrier should be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods.
Nullification and the American System
Although these were the only two times that the slavery question came for the court during Marshall’s tenure, it lurked in the background of almost all the cases involving constitutional questions which came before the court (although constitutional issues constituted only a small portion of the Supreme Court’s caseload). As we have previously noted, southern slave owners and proponents of the slave-based economy, feared that if the Congress could be considered to have the power under the Constitution to erect a national bank, to fund internal improvements, or to levy tariffs on foreign goods, it might also have the power to abolish slavery. Thus Marshall’s expansive, Hamiltonian reading of the Constitution was feared as a potentially mortal threat to slavery and the slave economy.
When the Nullification movement burst onto the national scene in 1829-30, driven first and foremost by South Carolina, the connection between slavery and opposition to the Hamilton-Clay “American System” was evident to all to see.
It is in this context that we understand the vehemence of Marshall’s opinion in Craig vs. Missouri, decided during the January term of 1830. At issue was whether certificates (or notes) issued by the State of Missouri violated Article 1, Section 10 of the Federal Constitution, which prohibits any state from emitting “Bills of Credit.” Marshall points out that this was always understood as referring to the issuing of paper money. During the colonial period, paper currency was often issued for lack of precious metals, and during the Revolutionary War, “we were driven to this expedient , and necessity compelled us to use it to a most fearful extent.” The term “bills of credit” came to signify paper currency.
Such a medium has always been liable to considerable fluctuation. Its value is continually changing; and these changes, often great and sudden, expose individuals to immense loss, are the sources of ruinous speculations, and destroy all confidence between man and man. To cut up this mischief by the roots, a mischief which was felt throughout the United States and which deeply affected the interest and prosperity of all, the people declared, in their Constitution, that no State should emit bills of credit.
It matters not that Missouri does not call these certificates “bills of credit,” says Marshall. The Constitution cannot be evaded by giving an old thing a new name. Nor does it make any difference that Missouri does not declare these instruments to be legal tender. After pronouncing the notes issued by Missouri to be “utterly void” for having been issued in violation of “the highest law of the land,” and castigating the courts of Missouri for declaring a state law to be valid although it be “repugnant to the Constitution of the United States,” Marshall then does something quite extraordinary. He refers to, and answers, the threat of violence made during oral argument in the case by U.S. Senator Thomas Hart Benton of Missouri.
Benton had complained that the writ by which Missouri was “summoned” and “commanded” to appear in federal court, was inappropriate when addressed to a “free, sovereign and independent state.” Moreover, Benton fulminated “If … the character of a sovereign state shall be impugned, contests about civil rights would be settled amid the din of arms, rather than in these halls of national justice.”
So, in concluding his opinion, Marshall observed:
In the argument, we have been reminded by one side of the dignity of a sovereign state, of the humiliation of submitting herself to this tribunal, of the dangers which may result from inflicting a wound on that dignity….
To these admonitions, we can only answer: that if the exercise of that jurisdiction which has been imposed upon us by the Constitution and laws of the United States, shall be calculated to bring on those dangers which have been indicated; or if it shall be indispensable to the preservation of the Union, and consequently of the independence and liberty of these states: these are considerations which address themselves to those departments which may with perfect propriety be influenced by them. This department can listen only to the mandates of law; and can tread only that path which is marked out by duty.
As biographer Beveridge notes:
In this noble passage Marshall is not only rebuking Benton; he is also speaking to the advocates of Nullification, then becoming clamorous and threatening; he is pointing out to Andrew Jackson the path of duty.
Probably just days, or at most a few weeks earlier, the U.S. Senate was rocked by the furious debate over Nullification between Daniel Webster and South Carolina’s Senator Robert Hayne during January 1830. The Nullification movement had arisen in response to the Tariff of 1828 (the “Tariff of Abominations”). Omitted from most accounts of the 1828 tariff, is Henry Clay’s allegation that the 1828 tariff bill was framed by opponents of the policy of protective tariffs, so as to make it unacceptable to friends of the American System, in hopes of defeating the bill (what today we would call a “poison pill”). Nonetheless, Clay said, the bill was passed, in the belief it was better to take the bad with the good, rather than rejecting it altogether.
The immediate trigger for the Senate debate was a Congressional resolution restricting further sale of federal lands, but it quickly expanded to encompass the entire contest between the American System and the southern slave economy. South Carolina’s Hayne, in arguing for Nullification, defended slavery and states’ rights, contending that if the Union were to be maintained, the rights of the southern states, particularly the right to own slaves, must be respected; any threat to those “rights” would justify nullification by the states of such federal action, and then secession if necessary. Each state, Hayne argued, is sovereign within its state boundaries, and is not subject to law imposed either by Congress or the U.S. Supreme Court. Outside its borders, it has no concern: “What interest,” he asked, “has South Carolina in a canal in Ohio?”
Hayne explicitly advocated the compact theory of the Union, almost as if each state were a completely separate country. Webster echoed Marshall’s opinion in McCulloch vs. Maryland, when he rebutted Hayne’s formulation, declaring:
It is, sir, the People’s Constitution, the People’s Government; made for the People; made by the People; and answerable to the People. The People of the United States have declared that this Constitution shall be the Supreme Law. …
Webster’s memorable concluding cry, “Liberty and Union, now and forever, one and inseparable!” came at the conclusion of a warning of the perils of dissolution, and a reminder of the origins of the Union that was absolutely Hamiltonian, specifying that the Union grew out of “the necessities of disordered finance, prostrate commerce, and ruined credit.”
Webster declared that he hoped never to peer into the abyss of disunion, when the Union might be broken up and destroyed.
When my eyes shall be turned to behold, for the last time, the sun in Heaven, may I not see him shining on the broken and dishonored fragments of a once glorious Union; on States dissevered, discordant, belligerent; on a land rent with civil feuds, or drenched, it may be, in fraternal blood!
Undermining Marshall and the Court
Thus gathered the clouds of disunion, which darkened Marshall’s last years on the Court.
The three dissenting opinions in the Missouri bills-of-credit – which suggested that the invalidation of state laws was a usurpation of power by the Supreme Court – marked a breach in the Court over Marshall’s nationalism. One more vacancy on the court would give Jackson the opportunity to appoint someone who would make a majority of justices opposing all that Marshall had built over the previous thirty years.
At the first session of Congress following the Missouri ruling, a bill was introduced to repeal the 25th Section of the Judiciary Act of 1789, which authorized the Supreme Court to hear appeals from the state courts when constitutional issues were involved. It was this provision which Marshall utilized so effectively compel the states to act in conformity with the Federal Constitution, and to attempt to realize the Hamiltonian vision of uniformity of commercial law among the states. “If the twenty-fifth section is repealed, the Constitution is practically gone,” warned Story. “Our wisest friends look with great gloom to the future.”
Marshall had foreseen this when he read the dissenting opinions in the Missouri case. “it requires no prophet to predict that the 25th section is to be repealed, or to use a more fashionable phrase, to be nullified by the Supreme Court of the United States.”
The following January, the House Judiciary Committee issued a report favoring repeal of Section 25, triggering a heated debate in Congress, featuring rabid attacks on the Supreme Court from proponents, and warnings that passage portended the end of the Union. Ultimately, the effort to repeal was defeated.
Jackson’s Attack on the National Bank
Other elements of the American System continued to come under attack. Jackson had come into office in 1829 determined to destroy the Bank of the United States – whose charter didn’t expire until 1836 – but he was compelled to proceed slowly because of the Bank’s popularity under its president Nicholas Biddle.
Realizing that Jackson intended an all-out assault on the Bank after the 1832 election, Biddle and his Congressional allies decided to make a fight over the recharter of the bank before the election. In January, friends of the Bank submitted a memorial to Congress for rechartering the Bank. The battle was joined, and Jackson designed Senator Benton of Missouri to lead the anti-bank forces in Congress. Benton’s views of paper money and banking, as expressed in the Craig case which he argued before the Supreme Court two years earlier, were known to coincide with those of Jackson.
The bill to recharter the Bank passed the Senate 28-20, and the House 107-85, and was sent to the President for signature on July 4, 1832. Six days later, Jackson vetoed the bill, in what some historians regard as the most important presidential veto in U.S. history.
Part of Jackson’s veto message (drafted at least in part by Roger Taney) was a demagogic appeal to populist passions, but the heart of it was an attack on Marshall’s opinion in McCulloch vs. Maryland. The Supreme Court speaks only for itself, Jackson spuriously claimed; it cannot control Congress or the Executive. Each branch must be guided by its own interpretation of the Constitution; the Supreme Court has no special authority over Congress or the President. Indeed, Congress’s authority to grant exclusive privileges or monopolies does not extend beyond the District of Columbia.
Webster, in the Senate, was outraged by Jackson’s disrespect of the Supreme Court and his effort to strip Congress of its legislative authority:
According to the doctrines put forth by the President, although Congress may have passed a law, and although the Supreme Court may have declared it constitutional, yet it is, nonetheless, no law at all, if he, in his good pleasure, sees fit to deny it effect; in other words, to repeal and annul it.
Henry Clay and Thomas Hart Benton almost came to blows on the Senate floor during the debate over Jackson’s veto.
As for John Marshall, he was agitated and disgusted by Jackson’s assault on the Court, and the extent to which “politics” – by which he meant the passions of the day – had permeated even the Supreme Court. He expressed this is a letter to Joseph Story a few weeks later:
We are up to the chin in politics. Virginia was always insane enough to be opposed to the Bank of The United States, and therefore Hurra’s for the veto. But we are a little doubtful how it may work in Pennsylvania. It is not difficult to account for the part New York may take. She has sagacity enough to see her interest in putting down the present bank. Her mercantile position gives her a controul, a commanding controul over the currency and the exchanges of the country, if there be no Bank of The United States….
Marshall then castigated Virginia for her support of Jackson’s veto of a bill for improvement of rivers and harbors (actually a “pocket veto” by which the bill died by Jackson’s withholding of his signature).
We show our wisdom most strikingly in approving the veto of the harbor bill also. That bill contained an appropriation intended to make Richmond a sea port, which she is not at present, for large vessels fit to cross the Atlantic…. This too is vetoed; and for this too our sagacious politicians are thankful. We seem to think it the summit of human wisdom, or rather of American patriotism, to preserve our poverty.
And, in this same letter, Marshall expresses his concern about the Nullification movement in South Carolina, saying it seems that they are “determined to risk all the consequences of dismemberment,” and how although they think Virginia will follow, he expects that neither Virginia nor North Carolina “will embrace this made and wicked measure.”
Defying the Court: the Cherokee cases
Weighing heavily on Marshall during 1832 was also the matter of the flagrant defiance of federal authority and the Supreme Court by Georgia in the matter of the Cherokee Indians, which had come before the Supreme Court for the second time early that year. In violation of all treaty agreements and of George Washington’s decades-old policy of assimilating the southeastern Indian tribes, Georgia had been seizing Cherokee lands, over which it had no legal authority.
In the first case, in 1831, Marshall had reluctantly concluded that the Court had no jurisdiction in the case, despite his personal sympathy for the Indians. The Cherokee, suing as a foreign nation, sought to enjoin Georgia from enforcing its state laws on Cherokee territory. In his opinion, Marshall found that the Cherokee were not a foreign nation, since their territory was part of the United States; in their treaties they had acknowledged being under the protection of the United States. Marshall defined their status as a “domestic dependent nation,” and stated, in a judgment disputed in dissents by Justices Story and Smith Thompson, that the Supreme Court was not the forum in which Cherokee rights could be asserted, or wrongs redressed.
However, the next year, the matter of Georgia’s assertion of its legal authority in Cherokee territory came before the Court again, in a manner in which Marshall felt he could wield jurisdiction. This was the case of Worcester vs. Georgia, involving a missionary, Samuel Worchester, a citizen of Vermont sent to the Cherokee territory by the American Board of Foreign Missions as an educator, and also appointed by President John Quincy Adams as postmaster of a Cherokee town. Georgia arrested Worcester and another missionary for illegally residing in Cherokee territory without a license from the State of Georgia. When they refused to leave the state, they were put to hard labor in a state penitentiary.
Marshall’s opinion, delivered on March 3, 1832 – just as the fight over the Bank of the United States was raging in Congress – was one of his most able and most powerful. It is worth reading alone for its comprehensive history of Indian relations from colonial times forward. His conclusion is that relations with the Cherokee are exclusively governed by the U.S. Constitution and federal law, and that the laws enacted by Georgia are repugnant to the Constitution, laws, and treaties of the United States. Samuel Worcester, who was residing in Georgia under the authority of the President of the United States, is entitled to the protection of the Constitution and federal law, against an unconstitutional state law. Can the Supreme Court overturn a judgment of a state court, made pursuant to a law which is in violation of the federal constitution? That was decided eleven years earlier, in Cohens vs. Virginia. Marshall therefore ruled that the judgment of the state court under which Worcester was jailed, is void and therefore reversed and annulled.
Georgia went ballistic, with its Governor calling it “usurpation” and vowing resistance. Whether or not Jackson ever said “John Marshall has made his decision: now let him enforce it! – the fact is that Jackson did nothing to enforce the Court’s judgment or assert federal authority. The Supreme Court was powerless, and Worcester remained in prison for another year.
Can the Union survive?
With Georgia’s defiance, tacitly supported by Jackson, in the Cherokee case, combined with the raging battle over the national bank, plus South Carolina’s promotion of Nullification over the tariff, it is no wonder that Marshall grew increasing despondent over the course of the year. In a September 22, 1832 letter to Story, Marshall expressed his private thoughts in a manner in which he probably did with no one else, particularly since the death of his beloved wife Polly at the end of 1831.
I yield slowly and reluctantly to the conviction that our Constitution cannot last. I had supposed that North of the Potowmack a firm and solid government, competent to the security of national liberty might be preserved. Even that now seems doubtful. The case of the south seems to me to be desperate. Our opinions are incompatible with a united government even among ourselves. The union has been prolonged thus so far by miracles. I fear they cannot continue.
In November came the presidential election in which Jackson was reelected as a result of a campaign characterized by the demagogic portrayal of Jackson as the hero of the common man, defending the people against the aristocracy of the rich, typified by those running the Bank of the United States.
Emboldened by Jackson’s victory, South Carolina passed an Ordinance of Nullification at the end of November, declaring the Tariffs of 1824 and 1828 null and void, directing state authorities to prevent enforcement of the tariffs laws within South Carolina, and forbidding any appeal to the U.S. Supreme Court from South Carolina state courts in matters involving federal tariffs. The Ordinance further vowed that South Carolina would meet any effort by the federal government to enforce the tariffs as inconsistent with the state’s remaining in the Union, and that the people of South Carolina “will proceed forthwith to organize a separate government” as a sovereign and independent state.
This was too much even for Jackson, who, despite his states’ rights proclivities, was not about to countenance such a challenge to his authority as President of the United States. He mobilized the garrisons at Forts Moultrie and Sumter, sent federal troops to the North Carolina-South Carolina border, and ordered the Secretary of the Treasury to deploy his revenue cutters and use every available resource to enforce the tariffs.
On December 10, 1832, Jackson issued his Nullification Proclamation. Using language which could have been borrowed from Marshall’s most nationalist opinions, especially McCulloch and Cohens, Jackson declared that the U.S. Constitution had established “a government in which all the people are represented, which operated directly on the people individually, not upon the states.”’ He said that the Supreme Court had the final say on the constitutionality of the laws, and that if the Supreme Court declared a law to be unconstitutional, the high court must be obeyed. And, in a direct challenge to South Carolina, Jackson warned: “Disunion by armed force is treason. Are you really ready to incur its guilt?”
Marshall was surprised and delighted with Jackson’s about-face, but he was dubious as to whether it would last. In a letter to Story, he expressed his concern about moves in Virginia to support South Carolina, in which some Virginians seemed to be laying the ground for a southern confederacy or league. He foresaw, not without some accuracy, that Virginia could split, with the northern and western sections resisting a connection with a separated South.
Then, in the face of Jackson’s firm stand, and with no other states supporting her, South Carolina backed down, suspending the Ordinance of Nullification in January 1833, and repealing it altogether in March. Meanwhile, Henry Clay, anxious to prevent a split in the Union, negotiated a compromise tariff bill which mollified South Carolina but angered some northern supporter of tariffs.
Marshall was under no illusions that the crisis was over. “Have you ever seen anything to equal the exhibition in Charleston and in the far South generally? he asked Story a letter in April 1833. “Those people pursue a southern league steadily or they are insane.” He indicated that he believed South Carolina was simply deferring the conflict until they could get other states to join them. Marshall told Story that he supported Clay’s compromise tariff bill, hoping that “our manufactures will still be protected by it.”
Killing the Bank
Demonstrating that his shift on nullification did not represent any fundamental or permanent change in his outlook, in March 1833 Jackson turned his attention to the National Bank, and began scheming to withdraw federal deposits as his way of destroying the Bank long before its charter expired in 1836. To counter Jackson’s scheming, the House voted on March 2 to keep the federal deposits in the Bank. Jackson’s entire Cabinet, save one member, agreed. The President’s only support came from his Attorney General, Maryland lawyer Roger B. Taney, a long-time enemy of Biddle.
Over the summer of 1833, Jackson deployed Amos Kendall, the anti-American System Kentucky newspaper editor whom Jackson had appointed to a Treasury position, to find suitable state banks which would accept the funds that Jackson intended to spirit out of the BUS. Jackson fired two Secretaries of the Treasury before appointing the scoundrel Taney in late September as Treasury Secretary to oversee the withdrawal – an appointment which the Senate refused to confirm. Not only did the Senate reject Taney’s nomination, but it passed a resolution in March 1834 censuring Jackson for withdrawing the funds from the Bank.
When the Supreme Court convened for its January 1834 term, Marshall knew the Court was facing a fundamental upheaval. His last Federalist ally, Bushrod Washington, was dead, and two nationalist Republican appointees, William Johnson and Gabriel Duval, would soon be gone – giving Jackson the opportunity to appoint two new Justices.
The vast majority of cases coming before the Supreme Court did not involve Constitutional issues, but there were two cases pending in 1834 which involved important Constitution questions and which had the potential to overturn or restrict key Marshall rulings. The first came from Kentucky, and raised the same question that Marshall had addressed in Craig vs. Missouri: could a state emit bills of credit which would function as a state currency in violation of the federal Constitution? The second came from New York, and allowed local officials to remove “undesirable” passengers from incoming ships, in violation of the Constitution’s commerce clause.
These two cases were argued before the Court in early 1834, with the result that the Justices were split 3-3, with one Justice absent due to illness. Marshall therefore announced a new rule, that the Court would not issue any judgment on Constitutional questions, unless four Justices – a majority of the Court – concurred. Marshall directed that the cases be held over for re-argument in the 1835 term, but a similar situation pertained then, and so the cases were held over again.
Meanwhile, in November of 1834, with Georgia having successfully defied the Supreme Court three times in the Cherokee territory, Georgia’s Governor Lumpkin threatened secession, warning that further attempts by the Supreme Court to meddle in Georgia’s affairs would result in the “dismemberment and overthrow” of the Union. Marshall feared also for Virginia; on December 4, 1834, in a letter to Story, Marshall described the Governor of Virginia (Littleton Tazewell) as “a complete nullifier in the Georgia sense of the term,” and adeed that, in Virginia, “We are insane on the subject of the bank.” He expressed his foreboding about his own situation:
It is among the most painful of the emotions excited by the prospect of my leaving public life, an event which although not intended to be immediate, cannot be very distant, that I shall part forever from friends most dear to me.
After having presided over the Supreme Court during the January-March term, John Marshall died on July 6, 1835, having served as Chief Justice of the United States for almost 35 years.
After Marshall’s death, as a reward for Roger Taney’s services in destroying the Bank of the United States, Jackson nominated him to succeed Marshall as Chief Justice. The Senate had previously twice rejected Jackson’s nominations of Taney, first as Secretary of the Treasury, and the second, to succeed Duval as an Associate Justice while Marshall was still alive. But by the third time, the Senate no longer had the capacity to resist, and after a three-month delay, Taney was confirmed, and was sworn in as Chief Justice in March 1836.
Once of the first moves by the Taney Court when the 1837 term opened, was to decide the Kentucky currency case and the New York commerce clause case, both of which had been held over from the 1834 term. In both cases, Marshall’s previous rulings were repudiated – over Story’s impassioned dissents.
And thus the Supreme Court embarked upon a “Dark Age” – the nadir of which would be Taney’s despised Dred Scott ruling twenty years later, which held that blacks could not be citizens of the United States, and that Congress could not prevent the expansion of slavery into the territories, raising the specter of slavery moving into the northern states.
It would take the Civil War and the presidency of Abraham Lincoln to revive the American System, and to resolve the questions of slavery and secession which had bedeviled the Marshall Court for all these many years and decades.
We will conclude this series with a review of John Marshall’s significance in American history, and his remarkable career which spanned the years from the Revolutionary War, to the era of Jacksonian “democracy.”
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Tags: American System, Andrew Jackson, Constitution, credit, Edward Spannaus, John Marshall, populism, Roger Taney, Supreme Court