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The First Hundred Years

by Jeffrey Rosen

For much of the Supreme Court's first century, its fiercest battles concerned the conflict between national power and states' rights. The battle was embodied by the clash of ideas and personalities between the Federalists, led by President John Adams and Chief Justice John Marshall, and the Jeffersonian Republicans, led by President Thomas Jefferson. The Federalists supported a strong federal government to preserve the union, feared unchecked majority rule, and hoped that independent courts would check democratic excesses. Reacting perhaps to their memories of monarchical rule, the Republicans were suspicious of both national power and the federal courts, believed strongly in states' rights, and insisted that constitutional disputes should generally be decided by local majorities rather than unelected judges. Ultimately, Marshall bested Jefferson in their constitutional battles, establishing both the power of Congress to regulate the national economy and the obligation of states to obey federal laws with which they disagreed -- all principles that Jefferson denied. But the confident Supreme Court that Marshall established nearly destroyed itself by intervening in the national crisis over slavery, and it took the Civil War to put it back on track.

The conflict between nationalism and states' rights dates back to the debates surrounding the framing of the Constitution itself. Federalists insisted that Congress and the president needed broad power to meet unforeseen national challenges; anti-Federalists worried about state sovereignty and insisted that only a written Bill of Rights could prevent the national government from violating the historic liberties of the people. On the Supreme Court, Marshall wrote the principles of the Federalists into the Constitution. In Fletcher v. Peck (1810), the first time the Supreme Court struck down a state law as unconstitutional, Marshall emphasized that private property and contracts couldn't be lightly interfered with by local majorities. The Marshall Court continued to advance Marshall's twin goals of encouraging national unity and thwarting local obstructionism in Martin v. Hunter's Lessee (1816), in which Justice Joseph Story, Marshall's good friend and loyal lieutenant, wrote an opinion asserting the Supreme Court's power to review state court decisions dealing with federal law.

The culmination of Marshall's national vision came in McCulloch v. Maryland (1819), in which he wrote an opinion for a unanimous Court upholding Congress' power to charter the Bank of the United States. Marshall resurrected the same arguments that Alexander Hamilton had used to persuade George Washington to charter the bank over Jefferson's objections: namely, that the Constitution gives Congress the authority to pass all laws "necessary and proper" for executing its constitutional powers, and that those words should be construed broadly, in a practical spirit. Marshall also insisted that the states had no power to tax the bank, rejecting Jefferson's view that the Union was a compact of sovereign states, any one of which could substitute its own constitutional views for those of Congress. Although the decision was popular in the middle and Northern states, it precipitated a backlash against the Court in the Southern and Western states.

Jefferson's reaction to McCulloch was especially peevish and extreme. He endorsed attacks on the decision published by the radical states' rights partisans Spencer Roane and John Taylor, agreeing that the Supreme Court had no power to review the constitutionality of state laws or to second-guess the decisions of state courts. Later, he seemed to deny entirely the Supreme Court's power to hand down binding interpretations of the Constitution. This proved too radical for Jefferson's protégé, James Madison, who wrote to his patron that he had no doubt that the framers of the Constitution intended the federal courts to be a final arbiter of conflicts between federal and state law. On his deathbed, just before he expired on July 4, 1826, Jefferson criticized Madison for being too accommodating.

Marshall lived another nine years, during which time he won over Jefferson's political successor, the states' rights partisan Andrew Jackson. Marshall had initially opposed Jackson's election to the presidency, and in the Cherokee Indians case, Worcester v. Georgia (1832), Marshall infuriated Jackson by insisting that Georgia laws that purported to seize Cherokee lands on which gold had been found violated federal treaties. Jackson is famous for having responded: "John Marshall has made his decision, now let him enforce it." Although the comment is probably apocryphal, both Georgia and Jackson simply ignored the decision. But in 1832, when South Carolina declared that it had the power to nullify federal laws with which it disagreed, Jackson at least temporarily embraced Marshall's vision of judicial authority, issuing a proclamation of the Supreme Court's ultimate power to decide constitutional questions and emphasizing that its decisions had to be obeyed. When Marshall died three years later, Jackson hailed him as a national hero -- but he also appointed men to the Court who would move Marshall's nationalism in the direction of states' rights.

Marshall's vision of national unity could not survive the political fractures that led to the Civil War. Under Chief Justice Roger Taney's leadership, the Court in the Dred Scott case (1857) made the mistake of imagining that it could short-circuit the political debate about the power of Congress to ban slavery. Endorsing the position of the most radical states' rights Democrats, the Court in Dred Scott held that Congress had a constitutional obligation to protect slavery in the federal territories and no power to ban it. The decision made a mockery of the Jeffersonians' claim that they were devoted to a limited role for judges in American politics, and it was reversed after the Civil War by the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution.

Unfortunately, the Supreme Court after the Civil War proved indifferent to the vision of racial equality and strong national power embodied in the new amendments. When Congress, in 1875, passed a Civil Rights Act that forbade racial discrimination in places of public accommodation, the Supreme Court struck down the law (the Civil Rights Cases [1883]), on the grounds that Congress had no power to regulate private discrimination. The only dissent was written by Justice John Marshall Harlan, a former slaveholder turned champion of African-American civil rights. Marshall charged his colleagues with ignoring former Chief Justice John Marshall's broad vision of national power. Like Marshall, for whom he was named, Harlan understood that the Court has best served itself and the nation by defending national power against the assaults of local majorities. This vision was finally vindicated by the Supreme Court and Congress during the Warren Court era of the 1950s and '60s, when Harlan's dissenting opinions became the law of the land and equal rights for African Americans finally became a national priority.