Commentary

Virginia’s Assault on the Marshall Court

by Edward Spannaus

Third in the series “The Supreme Court Affirms the American System”

May 3, 2018–Six weeks after his March 1819 monumental opinion in McCullough vs. Maryland, Chief Justice John Marshall, having returned to Richmond, wrote to Associate Justice Joseph Story: “Our opinion in the Bank case has aroused the sleeping spirit of Virginia, if indeed it ever sleeps. It will, I understand, be attacked in the papers with some asperity….”

And indeed it was. The “Richmond Junto,” as Virginia’s political elite was known, launched its first volley within days, in a series of articles published in the Richmond Enquirer under the pseudonym of “Amphictyon.” Thus began a battle, waged in the press, over the nature of the Constitution which would only be resolved in the Civil War. As Marshall himself wrote, at issue was whether “the government of the whole will be prostrated at the feet of its members; and that grand effort of wisdom, virtue and patriotism, which produced it, will be totally defeated.”

Virginia's Assault on the Marshall Court

Monticello, a symbol of Jefferson’s commitment to the plantation system.

As the Junto’s polemicists themselves admitted, their disagreement with the Marshall Court was not over the Bank; it was the entire “American System” which centered on internal improvements (infrastructure), protective tariffs to aid manufacturing, and the National Bank.

The most common interpretation of Virginia’s opposition is that the issue was slavery: if Congress had the powers over the states attributed to it by the Supreme Court, it could just as well abolish slavery. This is true, but it’s not the whole story. The more fundamental question was whether Virginia and other southern states would remain as a backward, feudal oligarchy, or whether the United States as a whole could develop a modern, industrial capitalist economy. The “Virginia agrarians” as they are politely called, led by Thomas Jefferson, were virulently opposed to manufacturing and the system of national banking, protective tariffs, and internal improvements which would make possible the rise of the United States as an industrial powerhouse.

So yes, the issue was slavery, but only because slavery was the backbone of Jeffersonian agrarianism, which was the mortal enemy of the American System.

Hamilton’s Ghost Spooks Richmond

“Amphictyon” at the outset questioned whether the entire Supreme Court had become Hamiltonian in their view of implied powers. He asked whether all the Justices have given to the term “necessary” (in the “necessary and proper” clause), the “liberal and latitudinous construction” given to it by Chief Justice Marshall, “and before him by Mr. Secretary Hamilton.”

Not wanting to believe that the four Republican-appointees would have gone along with Marshall and the other two remaining Federalists – and Hamilton! – he argued that, on a matter of this importance, affecting the rights of the “sovereign” states, each Justice should have spelled out his own reasoning. This was a thinly-veiled attack on the principle established by Marshall of having the opinion of the Court delivered unanimously and with one voice wherever possible.

Amphictyon (actually, John Brockenbough, president of the Bank of Virginia) argued at great length that there are two principles announced by the Court which “endanger the very existence of states’ rights.” The first is the Court’s denial that the powers of the federal government were delegated by the states, and not by “the people,” and second, that the grant of those powers that are “necessary and proper” to carry out the enumerated powers, ought to be construed in a liberal, rather than a restricted, sense.

Virginia's Assault on the Marshall Court

Virginia boss and chief justice of the Virginia Court of Appeals Spencer Roane.

It is the latter which gives rise to the doctrine of implied powers, which the author found so dangerous to the states. Taking together the General Welfare clause of Article I, Section 8, and Section 8’s “necessary and proper” clause, this combination, he argued, could allow a federal government of almost unlimited powers.

Amphictyon allowed that he was not, at this late date, contesting the constitutionality of the National Bank, but rather the principles which brought the Bank to life in 1791, and again in 1815. Whether one argued that Congress has the power to pass any law which might promote the General Welfare (as suggested by the Preamble), or just to provide for the General Welfare in any case involving the application of money (Article I, Section 8), the result is the same, he asserted. He disdainfully quoted Hamilton as proclaiming that “whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce, are within the spheres of the national councils, as far as regards an application of money.” (Report on Manufactures, 1791)

Amphictyon then presented a parade of “horribles” that would flow from such a construction of the Constitution: Congress could appropriate funds for roads and canals, condemn the land on which such roads might be built, and even erect corporations for internal improvements; Congress could built universities, academies, and school houses for the poor; or incorporate companies for the promotion of agriculture. (It’s notable that Virginia was among the most backward of states when it came to providing education, for poor whites as well as blacks, not establishing public education until after the Civil War in 1869.)

Marshall: The Constitution Is At Stake

Believing his arch-enemy Jefferson to be behind the Amphictyon essays, and concerned that they might go unanswered, Marshall himself took the extraordinary step of writing a set of pseudonymous essays, which were published in the Philadelphia Union, through the effort’s of Justice Bushrod Washington (George’s nephew), in April of 1819.

Writing as “A Friend to the Union,” Marshall politely and calmly ripped into Amphictyon (whom he suspected to be Brockenbough) for dishonestly introducing the “spirit of party” into the debate, by associating the decision of all seven Justices with those “two inveterate federalists,” Hamilton and Marshall. Four of these Justices were Republicans, having been appointed by Jefferson and Madison.

Marshall then focused his argument, as he did in the McCullough opinion, first on the nature of the Union, and that the creation of the Constitution was an act “of the people” and not of the states; and second, on the meaning of the “necessary and proper” clause. He pointed out that the Court never said that this should be construed in a “liberal sense,” only that it should not be construed in a “restricted sense.” It’s not a liberal construction, simply a fair one. And the Court never said that the “necessary and proper” clause enlarges the powers of Congress, just that it doesn’t constrain them.

The principles advocated by the State of Maryland before the Court, and by Amphictyon in his essays would essentially change the Constitution, render the government of the Union incompetent for the objects for which it was instituted, and place all its powers under the control of the state legislatures. It would, in a great measure, reinstate the old confederation.

Virginia's Assault on the Marshall Court

Chief Justice John Marshall in a steel engraving by Alonzo Chappel

Marshall was distressed by the manner in which his essays were published, since the editor had garbled them by switching sections of the essays around from one to the other. He therefore resolved to have them printed elsewhere in the correct order, but before this could be done, a second set of essays was printed in the Richmond Enquirer. These were written by Spencer Roane, chief of the Virginia Court of Appeals and political boss of Virginia, under the name of “Hampden” during June 1819.

The Enquirer’s editor – and Roane’s cousin – Thomas Ritchie penned an introduction to the “Hampden” essays, in which he complained that the Supreme Court’s opinion in the Bank case was “fraught with alarming consequences … the rights of the states and the people threatened with danger.” Roane himself declared that the Supreme Court was waging warfare against the states, and had discovered a new mode of amending the Constitution – by adopting the “outrageous doctrines” of the Bank’s proponents – and Roane couldn’t help himself from quoting the detested passage from Hamilton’s Report on Manufactures on the General Welfare including learning, agriculture, manufactures, and commerce.

Roane was clearly also galled by Marshall’s expansionist view of the Republic. Roane claimed that Marshall was not only stretching and extending the powers granted to Congress, but even the territory of the federal government itself, by claiming that it extended from St. Croix to the Gulf of Mexico, and from the Atlantic to the Pacific (referring to the McCullough opinion).

Roane professed the view that the powers that are delegated to the federal government relate chiefly to external objects (i.e. defense and foreign affairs), and that economic matters are reserved to the states, or, as he put it, that the states retain sovereignty over all other subjects, and over “subjects which immediately concern the prosperity of the people.”

What he meant by “prosperity of the people” was immediately made clear, when he asked: “Are the representatives of Connecticut in Congress, best qualified to make laws, on the subject of our negro population?” Clearly, the prosperity of the slave-owners is the subject of that “state sovereignty” which to which Roane is so enamored.

Exposing the plot to restore the Confederation

It wasn’t until the 1960s that it was discovered that Marshall had written a second series of essays in response to Roane’s “Hampden” series; Marshall arranged to have these published in the Alexandria (Va.) Gazette, under the nom de plume of “A Friend of the Constitution.” In these, Marshall corrected his garbled Philadelphia Union essays, and expanded them into nine separate parts, which were published between June 30 and July 15.

Marshall explained to Bushrod Washington why he was undertaking the extraordinary step of writing these essays: “I find myself more stimulated on this subject than on any other because I believe the design to be to injure the judges & impair the Constitution.”

The Chief Justice’s outrage at Roane and the Richmond Junto is evident in the opening paragraph, where he wrote that

it must be difficult for those who believe the prosperity of the American people to be inseparable from the preservation of this government, to view with indifference the systematic efforts which certain restless politicians of Virginia have been for sometime making, to degrade [the judicial] department in the estimation of the public. It is not easy to resist the conviction that those efforts must have other and more dangerous objects, than merely impairing the confidence of the nation in the present judges.

Marshall got right to the point, that we are dealing with people who reflect hatred for the Constitution, tracing it back to the “zealous and persevering hostility” with which the Constitution was originally opposed during the battle for its ratification. The desire to strip the federal government of its powers, and “to reinstate that miserable confederation” which was incompetent to preserve the Union, had now fully recovered its strength, he argued.

Virginia's Assault on the Marshall Court

Engraving depicting a brawl between a Massachusetts government supporter and a rebel, during Shays’s Rebellion (1786-87). Undated color illustration.

Systematically and thoroughly, Marshall demolished Hampden’s arguments and lies about how the Supreme Court has “enlarged” the powers granted to the national government; that it has usurped the powers inhering in the states; and that the Constitution established a league or a confederation of the states, not a national government, and so on. He noted that this question – of the states being bound together by nothing more than a league or an alliance – is the point to which all of Hampden’s arguments tend.

Marshall pointed out that the Confederation that existed prior to the adoption of the Constitution was a league that could do nothing but declare war or peace. To support these principles, “would reduce the Constitution to a dead letter.” The people of the United States have the right to reduce their government to a league, Marshall acknowledged, but, “Let them not be impelled to destroy the Constitution, under the pretext of defending states’ rights from invasion.”

Let them first look back to that “awful and instructive period of our history” which preceded the adoption of the Constitution. The states then were truly sovereign, and they were bound together only by a league. Look at the consequences of that system, which, Marshall pointed out, are depicted in the Federalist papers, especially No. 15. There, the author (Hamilton) stated that we “have reached almost the last stage of national humiliation.”

(While Marshall didn’t repeat Hamilton’s enumeration of the evils which had befallen the Confederation in this period, we should note that Hamilton did cite the failure to perform contractual obligations, the lack of any provisions for the discharge of debts owed to foreigners and our own citizens, the lack of public credit, foreign powers still illegally occupying American territories, the decline of commerce, the depression of land values, and the absence of private credit for industry.)

Marshall noted that the wisdom and patriotism of our country chose to transform this league, into an effective government. “Let us not blindly and inconsiderately replunge into the difficulties from which that wisdom and that patriotism have extricated us.”

At the conclusion of the ninth and final essay, Marshall (actually, “A Friend of the Union”) returned to this theme, saying that he had been compelled to review the Hampden essays in such detail, because they set forth principles which go “to the utter subversion of the Constitution.” If Hampden succeeded, the Constitution would be radically changed. “The government of the whole will be prostrated at the feet of its members; and that grand effort of wisdom, virtue and patriotism, which produced it, will be totally defeated.”

Slavery mortally threatened by American System

Virginia's Assault on the Marshall Court

Slave Auction in Virginia

At this point, the battleground shifted to Congress and the debate over whether Congress had the power to prohibit slavery in territories seeking to become states and join the Union. Southern states, led by Virginia, denied that Congress had any such power, and they blamed Marshall’s decision in McCullough as responsible for suggesting that Congress possessed such authority. The outcome of this long and contentious debate was the “Missouri Compromise,” which balanced the admission of a slave state (Missouri) with a free state (Maine), making twelve of each. This was only a temporary expedient, as everyone recognized, as threats of division, secession, and war were heard in the halls of Congress, and intensified throughout the land.

Protective tariffs and internal improvements were also central to political debate in this period. President Madison had vetoed the internal improvements bill introduced by Calhoun in 1816, on the grounds that Congress had no such power under the Constitution. The subject was taken up year after year with the same results; President Monroe likewise declared that Congress lacked the authority to appropriate funds for internal improvements.

This was the context in which Marshall and the Supreme Court seized the opportunity in 1820-21 to reiterate, in even stronger terms, the nationalist principles enunciated in McCullough. This was the case, and opinion, in Cohens vs. Virginia, discussed in our last article.

The reaction to the Cohens ruling was even more virulent. Writing as “Algernon Sidney” in the Richmond Enquirer, Spencer Roane demanded that the Supreme Court be abolished, accusing Marshall of “blind and absolute despotism,” and protested that the Supreme Court had no more jurisdiction over Virginia than over Russia. Jefferson said that the dangerous doctrine set forth by Marshall “would place us under the despotism of an oligarchy.” At another point, he called the federal government “our Foreign department.”

Virginia's Assault on the Marshall Court

Clay before Congress, debating the Missouri Compromise.

The rabid states’ rights advocate John Taylor, encouraged by Jefferson, targeted the protective tariff in his 1822 book Tyranny Unmasked, which he characterized as the product of Marshall’s “malleable” construction of the Constitution. Two years earlier, Taylor (and the Richmond Enquirer), had published his Construction Construed and Constitutions Vindicated, which has been called a manual for southern secession. Five of its 16 chapters were devoted to an attack on Marshall and the McCullough decision.

Marshall sounded the alarm in a letter to Joseph Story, warning that a “deep design to convert our government into a mere league of states” has taken hold in Virginia, and that the attack on the judiciary branch was in fact an attack on the Union. And, he added, the whole thing, “if not originating with Mr. Jefferson, is obviously approved & guided by him,” and therefore, “it behooves the friends of the Union to be more on the alert than they have been.”

The fundamental issue, of the Hamiltonian American System versus free-trade agrarianism and slavery, would not be resolved until the Union victory in the Civil War. But meanwhile, the American System still had its best days ahead of it, with the explosion of growth of roads, canals, and railroads, which was spurred on by Marshall’s “steamboat” decision of 1824. This will be the subject of our next article.

For the first article in this series, click here.

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