Empire of Liberty: A History of the Early Republic, 1789-1815 (78 page)

As jurists and lawyers became more professional and the law was increasingly regarded as a special science, the courts tried to avoid the most explosive
and partisan political issues. Certainly that was the secret of much of the success of the Marshall Court in these years. Not only did the Court retreat from the advanced and exposed political positions that the Federalists had tried to stake out for the national judiciary in the 1790s, but it also sought at every turn, at least up to the War of 1812, to avoid serious confrontations with the Republicans. Even the Court’s decision to issue a single anonymous “opinion of the Court” tended to dampen controversy and to give the impression of more consensus than existed in fact. In many of its decisions the Court sought to curtail governmental power—something that Marshall and other Federalists knew would be acceptable to many Republicans who were eager to expand the areas of individual freedom.

Prior to its decision in
McCulloch v. Maryland
in 1819, the Marshall Court did not attempt to build up the power of the federal government positively. That enhancement of governmental power would have aroused Republican hostility everywhere. Instead, it moved to reduce governmental power, not at the federal but at the state level. It declared a large number of
state
judicial interpretations and
state
laws invalid because they violated the national Constitution. In doing so it indirectly augmented the supremacy of the nation and its own authority as well. In a series of decisions beginning with
United States v. Peters
(1809) and
Fletcher v. Peck
(1810) and proceeding through
Martin v. Hunter’s Lessee
(1816), the Supreme Court established its right to review and reverse decisions of state courts and state legislatures involving interpretations of federal law and the federal Constitution. At the same time, the Court’s insistence on the rule of law binding the entire country worked to strengthen people’s feeling of being citizens of the United States and not just their individual state.
⁶³

In the
Peters
case the Pennsylvania state legislature had ignored a federal district court decision and had claimed the right by itself to interpret federal law. In a powerful opinion Marshall declared that a state legislature could not annul the judgments of the courts of the United States in this way or else the Constitution would become “a solemn mockery.” The nation, if it were to be one, had to have “the means of enforcing its laws by the instrumentality of its own tribunals.” When Pennsylvania appealed to President Madison for help in resisting this judgment, Madison refused, fearing the effect it would have on the New England states that were resisting federal law.
⁶⁴

In the
Martin
case the Virginia Court of Appeals had refused to obey an earlier decision of the U.S. Supreme Court. But it also had denied the right of Congress in the Judiciary Act of 1789 to grant authority to the
Supreme Court to hear appeals from the state courts. In a masterful opinion written by Justice Joseph Story (with Marshall absenting himself because of a conflict of interest), the Court asserted the supremacy of the nation. It said that the people, not the states, had created the Constitution, and therefore they had the right to grant to the national government whatever powers they chose and to prevent the states from exercising powers they believed incompatible with the authority of the central government. From these premises the Court went on to declare that no state decision involving federal matters could be final. To enforce the supremacy clause of the Constitution and to maintain the uniformity of national law throughout the country, the Supreme Court had to have the ultimate authority to hear appeals from state courts on federal issues. This became the cornerstone of the American judicial system.

At the same time, following the test case
Fletcher v. Peck
(1810), the Court overturned a series of state laws that interfered with private contracts and thus violated Article I, Section 10 of the Constitution. The
Fletcher
case was the result of a twenty-year process of legal and political manipulations arising out of the Yazoo land scandal of the 1790s. In the early 1790s the corrupt Georgia legislature had sold thirty-five million acres of land to several Yazoo land companies for $500,000, the price adding up to something less than two cents an acre. In 1796 the outraged voters of Georgia elected a new legislature that voided the sale and burned all records of it. In the meantime, however, the speculative land companies had sold many acres to good faith buyers, many of whom were New Englanders. Confusion and lawsuits followed. The Jefferson administration tried to work out a compromise among the various interests, which enraged John Randolph, who, according to William Plumer, lashed out at everyone, “demo’s and feds indiscriminately,” in the most “coarse & vulgar” manner, charging everyone “with peculation, bribery, & corruption.” By 1810 the Supreme Court had received a contrived case that sought to settle the whole matter, at least legally.
⁶⁵

In his opinion in the
Fletcher
case Marshall decided that the Georgia legislature’s rescinding of a previous corrupt legislative sale of the Yazoo lands had violated the contract clause in Article I, Section 10 of the Constitution, and was thus invalid. The legislature’s original sale, however corrupt, was in the nature of a contract that gave the buyers vested rights in the property, and no subsequent state law could divest those rights. Not only was this the first major Supreme Court decision to declare a state statute in violation
of the Constitution, but Marshall also shrewdly stated that the Court had no business getting into the motives of the Georgia legislature, thus helping to underline the idea that law and politics were separate spheres.

In the
Fletcher
decision Marshall also argued that it was not simply “the particular provisions of the Constitution of the United States” that nullified the Georgia statute but also those “general principles which are common to our free institutions.” The Court, he said, could draw upon these principles to protect individual property rights from the “sudden and strong passions” of the popular state legislatures. The Constitution, said Marshall, contained “what may be deemed a bill of rights for the people of each state.” Justice William Johnson in a concurring opinion carried this point of fundamental principles much further. He agreed with Marshall that the state of Georgia did not have the power to revoke its grant once made. He agreed, however, not on the basis of the contract clause of the Constitution, but “on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity.”
⁶⁶

These kinds of judicial appeals to reason and the nature of things became increasingly common in the early Republic. They grew out of the Americans’ ambiguous and unusually instrumental attitude toward law that had its roots in the colonial period. Each of the states began developing its own non-statutory body of rules and procedures—its own common law. In place of the customs and technicalities of the English common law, the courts offered prudent and pragmatic regulations and justified them by what Connecticut jurist Jesse Root in 1798 called the “the reasonableness and utility of their operation.”
⁶⁷
By the early decades of the nineteenth century some Americans regarded their common law as something that could be self-consciously created and manipulated, but of course only in a piecemeal fashion; indeed, some were even expanding Lord Mansfield’s view that judges ought to be the chief agents of legal change. Only the courts, Zephaniah Swift, chief justice of the Connecticut supreme court, declared in 1810, “possess a discretion of shaping the rules . . . [and] furnishing remedies according to the growing wants, and varying circumstances of men, . . . without waiting for the slow progress of Legislative interference.”
⁶⁸

Although most judges continued to deny that they made law in the way legislatures did, it became increasingly obvious that they did something
more than simply discover it in the precedents and customs of the past. Indeed, many judges soon came to realize that they had the primary responsibility to make new law to meet new circumstances.
⁶⁹
Judges could justify this extraordinary role for themselves only by claiming that they were pulling back from overt participation in politics and by designating as issues of law some particular things that were now within their special jurisdiction.
⁷⁰

Jurists and politicians in the early Republic began to draw lines around what was political or legislative and what was legal or judicial and to explain the distinctions by the doctrine of separation of powers. In his
Marbury
decision Marshall clearly drew this distinction. Some questions were political, he said; “they respect the nation, not individual rights,” and thus were “only politically examinable.” But questions involving the vested rights of individuals were different; they were in their “nature, judicial, and must be tried by the judicial authority.”
⁷¹
By turning all questions of individual rights into exclusively judicial issues, Marshall appropriated an enormous amount of authority for the courts. After all, even Jefferson in 1789 had conceded the authority of judges, “kept strictly to their own department,” to protect the rights of individuals. Of course, Jefferson had not anticipated Marshall’s expansive notion of rights.
⁷²

Although Marshall had the extraordinary rhetorical ability to make everything he said seem natural and inevitable, his separation of law from politics would not have been possible without large numbers of influential people becoming increasingly disillusioned with the kind of legislative democracy that was emerging in the early Republic. This abhorrence of democratic politics and reliance on the judiciary were, of course, much easier for Federalists who were having more and more difficulty getting elected. As Virginia jurist St. George Tucker pointed out in his annotated edition of Blackstone’s
Commentaries
of 1803, because the men of greatest talents, education, and virtue were not able to compete as well as others in the new scrambling, pushy, and interest-mongering world of popular electoral politics, they necessarily had to look to the law for security.
⁷³

Marshall himself, like all “honest men who have honorable feelings,” was increasingly “disgusted with . . . the political world” he saw around him, and was “much more gloomy” about the democratic future.
⁷⁴
Everywhere the growth of democracy demanded the insulating of legal issues from popular politics; “for,” as Marshall put it, “nothing is more to be deprecated than the transfer of party politics to the seat of Justice.”
⁷⁵
But even Marshall did not foresee all the implications of what was happening. In 1805, on the eve of the impeachment trial of Justice Samuel Chase, Marshall continued to concede that a legislature possessed judicial capacities and could overturn judicial opinions that it deemed unsound. So the separation of legislation from jurisprudence, politics from law, came hard to those reared in the old-fashioned tradition that legislatures were at heart just courts.

Yet, as American society became more commercial, with increasing numbers caught up in buying and selling and creating new modern sorts of property—property as venture capital, as a product of a person’s labor and entrepreneurial skills—the judiciary’s role in protecting property from capricious and irresponsible popular legislatures at both the state and federal levels became increasingly attractive to more and more people.
⁷⁶
Consequently, many members of Jefferson’s own party, who always talked about equal rights, began to accept the Marshall Court’s message that all issues involving property rights were legal questions cognizable only by the courts, in effect, isolating these issues from partisan debate and the clashes of interest-group politics. Even the strongly pro-Jefferson Virginia Court of Appeals in 1804 acknowledged that the state legislature could do many things, but it could not violate private and vested rights of property.
⁷⁷

But could the state itself create private property? State legislatures could grant charters of incorporation, but once vested in individuals did these charters become rights that could no longer be touched by the granting agency? These questions bedeviled the politics of the states and eventually produced one of the most important legal developments of the first decade and a half of the Marshall Court.

A
MERICANS WERE FAMILIAR
with the use of public corporate charters. In the past the English crown and the colonial governments had
often granted monopolistic charters of incorporation to private persons and associations to carry out a wide variety of endeavors presumably beneficial to the whole society, such as founding a colony, maintaining a college, or creating a bank. In 1606 the English crown had given just such a charter to the Virginia Company to settle parts of North America. These corporate privileges had not been frequently granted or widely available; they had been made at the initiative of the government, not private interests; and they had recognized no sharp distinction between public and private. Although the Virginia Company had been composed of private entrepreneurs, it was as much public as it was private. The same was true of the seventeenth-century corporate charters of Massachusetts Bay, Connecticut, and Rhode Island, as well as those of Harvard, Yale, Dartmouth, and all the other colonial colleges. Although in the nineteenth century most of the colleges, especially those with religious affiliations, eventually became private institutions, at the time of the Revolution they were still regarded as public institutions with communal responsibilities, and as such they received tax money and public support.