The Supreme Court as Final Arbiter in Federal-State Relations, 1789-1957

By John R. Schmidhauser

In analyzing the Supreme Court's powers in federal-state relations, the author demonstrates that the framers of the constitution clearly intended that the Court should be the federal umpire, thus disproving a charge by modern states' righters of usurpation of power by the Supreme Court. In each historical period the effect of the Court interpretations on the autonomy of the state governments and on the acceleration of federal centralization is considered.

Originally published in 1958.

A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

• Language: English
• Publisher: The University of North Carolina Press
• Release date: Jun 1, 2016
• ISBN: 9781469632476

Book preview

CHAPTER I: The Origin of the Supreme Court’s Power as Arbiter in Federal-State Relations

ANY FEDERAL SYSTEM requires an institution to determine conflicts of authority between the nation and the states comprising it. In the four most important modern federal states, Australia, Canada, West Germany, and the United States, such authority has been lodged in a judicial body. The highest judicial institution of the last, the Supreme Court of the United States, in many respects served as a prototype for application of the judicial arbiter principle in the federal systems of Australia, Canada, and West Germany. Within the United States itself, the influence of Supreme Court decisions upon the American federal system is generally recognized as determinative. An examination of the manner in which the Supreme Court fulfilled its responsibilities as arbiter of American federalism is the primary purpose of this study. Such an examination may contribute to greater understanding of the characteristics of American federalism and may also provide data for a broader study of comparative judicial institutions.

How well suited is the Supreme Court of the United States for its role as umpire in federal-state relations? For an understanding of the Court’s present potentialities and limitations, analysis of its past performance is in order. Such analysis embraces investigation and interpretation of one hundred and sixty years of judicial arbitership. The task of interpretation, of necessity, raises the question of criteria. By what standards may the performance of the Supreme Court be measured? Past expectations perhaps modified by present necessities can throw light on this problem. The study of origins provides a logical starting point. What role did the framers of the Federal Constitution and the members of the ratifying conventions envisage for the Supreme Court?

Interestingly enough, one school of constitutional interpretation persistently denies the legitimacy of the Supreme Court’s power to render definitive decisions in conflicts between the federal government and the states or between individuals and states which denied them rights guaranteed by the federal constitution. The continued vitality of this old constitutional argument was strikingly illustrated on March 12, 1956, when Senator Walter George introduced a manifesto signed by nineteen senators and seventy-seven representatives from the Southern states. The manifesto referred to the Supreme Court’s decision in Brown v. Board of Education¹ as judicial usurpation, a substitution of naked power for established law and an unwarranted exercise of power … contrary to the Constitution.²

Although the supporters of this manifesto made no attempt to formulate serious theoretical or historical arguments to buttress their charge of judicial usurpation, they may properly be considered the intellectual heirs of the constitutional argument of John C. Calhoun. For in advocating the repeal of the 25th section of the Judiciary Act of 1789, Calhoun unequivocally denied that the framers of the Constitution had chosen the Supreme Court as federal umpire.³

The challenges of judicial usurpation of the power to arbitrate in federal-state relations, whether made by a Calhoun or by one of his modern protagonists such as Byrnes or Talmadge, are susceptible to historical examination. The record of history unequivocally demolishes these challenges.

THE COLONIAL AND CONFEDERATION PERIODS

The conception of a powerful judicial body maintaining a division of powers in a federal system did not appear miraculously to the justices of the Supreme Court after the adoption of the Constitution. It was clearly understood and partially applied during the period when America was a colony of Great Britain and under the Articles of Confederation.

The British Empire maintained the fiction that it was a unitary system until after the American Revolution, but the Empire’s relationships with the thirteen colonies had, in reality, become essentially federal. The government of the whole Empire, that of Great Britain, had been forced by the pressure of European wars and great distances to leave most problems of domestic legislation and administration to the governments of the parts of the Empire, notably the American colonial governments. Naturally enough, the development of local autonomy in the colonies led to conflicts of authority between the mother country and the colonies as well as among the colonies themselves. It was a quasi-judicial institution of the British Empire, the Committee on Trade and Plantations of the British Privy Council, which resolved such conflicts.⁴

After the American colonies broke with Great Britain, a new problem arose, that of balancing the powers of the states and the new central government in North America. A temporary solution was found in the creation of a confederate system. The Articles of Confederation established a very limited form of judicial arbitration in two narrow fields, the settlement of disputes between the states and the settlement of disputes between the Confederation Congress and the states concerning cases of capture on the high seas.

The first category of disputes was to be settled in accordance with the ninth of the Articles of Confederation. This provided that the united states in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction or any other cause whatever.… The parties to a dispute could be directed by Congress to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question. Or if the disputing parties could not agree, Congress could itself make the appointments. The Article further provided that the judgment and sentence of the court … shall be final and conclusive.… A serious land dispute was peacefully resolved under this article in 1782.⁵ Yet such a court of arbitration lacked permanence. Consequently, it was probably the second judicial institution created under the Confederation which was more influential in the evolution of the judicial arbiter concept in American federalism. The Court of Appeals in Cases of Capture was a permanent judicial body which heard 118 cases before the Articles of Confederation were replaced by the new federal Constitution. A member of this Court, Judge John Lowell, made the experiences of this judicial body available to the Constitutional framers in 1787 and to the Senate in 1789, sketching a plan for a federal judiciary in a letter to some of the framers and later, in 1789, giving his counsel and advice to the Senate Judiciary Committee.⁶

During the waning years of the Confederation itself, serious attention was given to various proposals to establish a more powerful central judiciary capable of putting an end to state encroachments on or defiance of the authority of the Confederation government. Although these proposals never were adopted by the Confederation, they do provide unmistakable evidence that political leaders of this era were fully aware of the potentialities of a judicial arbiter in confederate or federal governmental systems. A Confederation Congress committee report submitted in 1786 by Charles Pinckney contained, in essence, a complete arrangement for the creation of a federal court capable of umpiring federal-state disputes. Pinckney’s committee suggested that the Confederation Congress be authorized:

… to institute a federal judicial court for trying and punishing all officers appointed by congress for all crimes, offenses, and misbehavior in their offices, and to which court an appeal shall be allowed from the judicial courts of the several states in all causes wherein any question shall arise on the meaning and construction of treaties entered into by the United States with any foreign power, or on any law of nations, or wherein any question shall arise respecting any regulations that may hereafter be made by congress relative to trade and commerce, or the collection of federal revenues pursuant to powers that shall be vested in that body, or wherein questions of importance may arise, and the United States shall be a party.…⁷

Similar ideas for strengthening the Confederation government through creation of some sort of federal judicial arbiter were formulated or were discussed by Rufus King,⁸ James Madison,⁹ and Nathan Dane.¹⁰ Just prior to the Philadelphia Convention of 1787, however, a significantly different argument was discussed widely. Instead of viewing a federal judicial arbiter as primarily a defender of the central government, a broadly circulated pamphlet proposed that

In order to prevent an oppressive exercise of powers deposited with Congress, a jurisdiction should be established to interpose and determine between the individual States and the Federal body upon all disputed points, and being stiled The Equalizing Court, should be constituted and conducted in the following manner.…

This proposal was reprinted in the leading newspapers, and appeared in the Pennsylvania Gazette in Philadelphia on June 6, 1787, during the early days of the Convention.¹¹ Thus, while supporters of the idea of a strong national government had begun to favor the judicial arbiter as a means of restraining the states, those who feared the encroachments of a strong national government had begun to look upon a strong judicial system as a protector of individual and states’ rights. Recognition of this development makes more understandable the absence of states’ rights or anti-Federalist opposition to most of the proposals made in the Convention which strengthened the federal judiciary.

THE PHILADELPHIA CONVENTION

One of the major reasons for holding the Philadelphia Convention had been the necessity to find a remedy for the evils arising from state legislation which hurt or interfered with the interest of other states, infringed treaties made by the Confederation Congress, oppressed individuals, or invaded the sphere of authority of the Confederation government. The Convention delegates were faced with the task of finding suitable means of restraining such state legislation or action. Despite the fact that the idea of a judicial arbiter was understood and widely discussed before the opening of the Convention, the creation of a high federal court to solve this problem was by no means a foregone conclusion. Years after the close of the Convention, James Madison referred to the situation in the following manner—the obvious necessity of a control on the laws of the State so far as they might violate the Constitution and laws of the United States left no option, but as to mode…, noting as the three possible choices a veto [executive] on the passage of the State laws, a Congressional repeal of them, a judicial annulment of them.¹²

Analysis of the record of the Philadelphia Convention underscores the fact that the granting of power to the federal Supreme Court to arbitrate finally in federal-state relations came about through a complex series of developments. Basically, they represented a compromise between the strong nationalists who originally wanted a veto over the states vested in the new national legislature or executive and the states’ righters who either opposed such supervision of the states or preferred that this power be vested in what they considered a weaker and more impartial agency, notably the supreme federal court suggested in the original Paterson Plan.

Among the more important of these developments were (a) the repudiation of coercion of the states by force and the adoption of coercion of individuals by law, (b) the readiness of every major bloc in the Convention to set up a federal judiciary, (c) the demands of one powerful group for a system of inferior federal tribunals, (d) the defeat of the congressional negative proposals and the substitution by Luther Martin of a supremacy clause, and (e) the tendency to look upon a federal judiciary as a protector of individual and states’ rights which was reflected in the proposals for a Council of Revision. Very often these developments seemed totally unrelated, but their cumulative effect was the granting of final interpretive powers in federal-state relations to a supreme federal tribunal.

Prominent among the resolutions for union was a provision for congressional veto of state laws presented by Edmund Randolph at the opening session of the Convention. It provided That the national legislature ought to be empowered … to negative all laws, passed by the several States, contravening, in the opinion of the national legislature, the articles of union. Later, on May 31, the Convention, in committee of the whole house, amended it by addition of the phrase or any treaties subsisting under the authority of the Union. The entire resolution was agreed to by the committee without debate or dissent.¹³ However, when this resolution was reported from the Committee to the Convention on July 17, it met with violent opposition. Gouverneur Morris thought such power likely to be terrible to the States; Luther Martin considered it improper; and Sherman believed that since the state courts would hold invalid any laws contravening the authority of the Union, such a veto would be unnecessary. Madison and Charles Pinckney did not share Sherman’s confidence in the state courts, however, and held that the congressional negative was necessary as, in the words of Madison, the most mild and certain means of preserving the harmony of the system. In spite of Madison’s appeal, the Convention defeated the proposal for a congressional negative on state laws by a vote of seven to three.¹⁴

Even before the rejection of the congressional negative by the Convention on July 17, there was clearcut evidence that the advocates of a strong central government were prepared to limit the congressional negative by providing for final appeal to a national judiciary. As early as July 10, Randolph had sent Madison a list of concessions to be used as an accommodating proposition to small states which then were bitterly opposed to the principle of representation based upon population.¹⁵ In terms of the judicial arbiter concept, the fourth and fifth of Randolph’s proposals were particularly significant because they clearly anticipated the Supreme Court’s modern role as both a federal umpire and as a defender of individual rights against state infringement. His suggestions provided:

IV. That, although every negative given to the law of a particular state shall prevent its operation, any state may appeal to the national judiciary against a negative, and that such negative if adjudged to be contrary to the powers granted by the articles of the Union, shall be void.

V. That any individual, conceiving himself injured or oppressed by the partiality or injustice of a law of any particular state, may resort to the national judiciary, who may adjudge such a law to be void, if found contrary to the principles of equity and justice.¹⁶

Randolph was prepared to offer these conciliatory proposals to the Convention on July 16, but did not do so because of the victory of the small states, on that day, in securing equal voting rights in the Senate.¹⁷

Throughout the course of the Philadelphia Convention the major discussions of the federal judicial arbiter were generally related to the nationalists’ attempts to gain approval for the congressional negative of state laws. However, other discussions in the Convention also contributed to the evolution of the supreme federal tribunal. The proposals for a Council of Revision composed of the chief executive and judges of the highest national court, while eventually defeated, stimulated discussion of the power of judicial review.¹⁸ Rejection by the Convention of the proposals to coerce the states by force contained in both the Randolph and Paterson plans were followed by adoption of the principle of direct coercion of individuals by the national government itself. This solution reflected the recognition by Convention leaders of the need to discover a peaceful mode of limiting state interference with national authority.¹⁹ The initiative in finding such a solution was now taken by the leaders of the small-state bloc in the Convention, many of whom were of states’ rights persuasion.

Using as their starting point a clause from the Paterson Plan guaranteeing the supremacy of the national government within the sphere of its legitimate authority, states’ rights supporters attempted to placate the nationalists who were bitterly disappointed by the defeat of the congressional negative proposal on July 17. Luther Martin submitted what he undoubtedly considered a mild substitute for such a negative.²⁰ His original proposal stated:

… that the Legislative acts of the United States made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said states, or their citizens and inhabitants—and that the Judiciaries of the several States shall be bound thereby in their decision, anything in the respective laws of the individual States to the contrary notwithstanding.²¹

Later, the nationalists in the Convention changed this relatively mild resolution in several important respects. These amendments were made in the closing days of the Convention in August and September. On August 5, 1787, the Convention’s committee on detail had compressed Martin’s resolution and made two significant changes—federal laws were declared supreme over state constitutions as well as state laws, and the duty to uphold the supreme law was imposed on the Judges in the several States instead of on the Judiciaries of the respective states. On August 23, John Rutledge proposed the following important addition: This Constitution and the laws of the United States made in pursuance thereof … shall be the supreme law of the several states. Thus the Constitution was made judicially enforceable law. The Convention adopted this proposal without debate.²² Finally, on September 12, the committee on style completed the final draft of the Constitution. Luther Martin’s resolution had become a part of Article VI. From the point of view of federal-state relations this was the crucial provision in the fundamental document. Section 3 of that article read:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.

Defeat of the plan for a congressional negative left the Convention with two institutional alternatives for the enforcement of national supremacy. The first was an ultra-nationalistic suggestion put forth by Alexander Hamilton in his plan for union. Section 10 of the plan provided that all laws of the particular States contrary to the Constitution or laws of the United States to be utterly void; and the better to prevent such laws being passed, the Governour or president of each state shall be appointed by the General Government and shall have a negative upon the laws about to be passed in the state of which he is Governour or President. Hamilton’s alternative was not even seriously considered by the Convention. The second was the judicial arbiter which had been an integral part of the original Paterson Plan. Section 5 had provided that a federal judiciary be established to consist of a supreme tribunal the Judges of which to be appointed by the Executive.… Section 2 of the same plan proposed that violations of acts of the federal Congress be tried in the first instance in the superior Common law Judiciary of the state concerned, subject … for the correction of all errors, both in law and fact…, to an appeal to the Judiciary of the United States.²³

Actually, every major plan for union—Randolph’s, Hamilton’s, and Paterson’s—had provided for a national judicial system ²⁴ The essential difference between the nationalistic plans of Randolph and Hamilton and the states’ rights plan of Paterson is that the latter failed to provide a system of inferior federal courts. The nationalists did not actually oppose the adoption of a judicial arbiter, but merely felt, as James Wilson later indicated, that a judicial check on the states would not be sufficient to maintain a strong central government. On August 10, Charles Pinckney grudgingly admitted that the federal judges will even be the Umpires between the United States and individual states as well as between one State and another. However, a few days later, on August 23, he tenaciously sought to reinstate the congressional negative, but was defeated by a six to five vote. In urging support for Pinckney’s motion, Wilson recognized impliedly that in the absence of a congressional negative, the national judiciary would seek to maintain the supremacy of the national government. This he felt was not enough because the firmness of Judges is not of itself sufficient. Something further is requisite—It will be better to prevent the passage of an improper law, than to declare it void when passed.²⁵

A letter exchange between Thomas Jefferson and James Madison concerning the relative merits of the congressional negative and the judicial arbiter illustrates clearly the contrasting positions of the states’ righters and the nationalists.²⁶ Although he did not attend the Convention, Jefferson was representative of those who, while they feared establishment of a national government in which all authority would be centralized, realized quite clearly that some degree of centralized control was necessary to bring stability to the then chaotic thirteen states. In his reply to Madison’s inquiry concerning a congressional negative on state laws, Jefferson presented a viewpoint which might be taken as indicative of the attitude of other advocates of a strictly limited central government. He wrote:

The negative proposed to be given them on all the acts of the several Legislatures is now for the first time suggested to my mind. Prima Facie I do not like it. It fails in an essential character, that the hole and the patch should be commensurate; but this proposes to mend a small hole by covering the whole garment. … Would not an appeal from the state judicatures to a federal court in all cases where the act of Confederation controlled the question, be as effectual a remedy, and exactly commensurate to the defect?

On the other hand, the advocates of a strong central government, while favoring the granting of broad judicial powers, had realized that judicial nullification of state laws was possible only when federal questions arose in bona fide cases before the new Supreme Court. Madison’s letter to Jefferson after the close of the Convention indicated the lack of assurance he shared with other advocates of strong government. He wrote:

It may be said that the Judicial authority under our new system will keep the states within their proper limits and supply the place of a negative on their laws. The answer is that it is more convenient to prevent the passage of a law than to declare it void, after it is passed; that this will be particularly the case, where the law aggrieves individuals who may be unable to support an appeal against a state to the Supreme Judiciary, that a state which would violate the legislative rights of the Union would not be very ready to obey a Judicial decree in support of them, and that a recurrence to force, which in the event of disobedience would be necessary, is an evil which the new Constitution meant to exclude as far as possible. A Constitutional negative on the laws of the states seems equally necessary to secure individuals against encroachments on their rights. The mutability of the laws of the States is found to be a serious evil.

After the final defeat of the congressional negative in the Convention on August 23, the nationalists determined to make the best of an unhappy situation by strengthening the federal arbiter by means of grants of broad constitutional jurisdiction and through institution of a complete system of inferior federal courts. The extension of the Supreme Court’s jurisdiction to all cases, state and federal, arising under the Constitution was made without states’ rights argument. But the attempt at creation of a system of inferior federal courts aroused such fierce opposition that the nationalists were compelled to accept a compromise by which the establishment of such courts was left to the discretion of the new Congress.²⁷

Nationalist bitterness at the substitution of a judicial arbiter for their cherished congressional negative persisted to the end of the Convention. For example, on September 12, James Madison supported a motion by Mason which provided that the clause relating to export duties be amended to allow the states to lay such duties for the sole purpose of defraying the charges of inspecting, packing, storing and indemnifying the losses in keeping the commodities in the care of public offices before exportation. Gorham and Langdon had asked: How was redress to be obtained in case duties should be laid beyond the purpose expressed? Madison coldly replied that there will be the same security as in other cases—The jurisdiction of the Supreme Court must be the source of redress. So far only had provision been made by the plan against injurious acts of the States. His own opinion was, that this was insufficient,—A negative on the State laws alone could meet all the shapes which these could assume. But this had been overruled.²⁸

The Philadelphia Convention record indicates unmistakably that the new Supreme Court had been clearly designated the final judicial arbiter in federal-state relations and that it was primarily the states’ righters in the Convention who had brought this to pass. The nationalists had not opposed the creation of the judicial arbiter but had felt strongly that a national judiciary would not, by itself, be strong enough to cope with state encroachments on national authority.

THE STATE RATIFYING CONVENTIONS

In spite of their misgivings, the advocates of strong central government did not let lack of confidence in a federal judiciary weaken their efforts to secure ratification of the Constitution. Two of the contributions to the Federalist by Madison and Hamilton were devoted to an examination of the proposed judicial arbiter, its purposes and its impartial character.²⁹ Within the state ratifying conventions, the nationalists frequently found themselves the staunchest defenders of the same judicial arbiter for which they had indicated only lukewarm enthusiasm during the Philadelphia Convention, for serious states’ rights objections were raised to certain provisions of the judicial clauses in the new Constitution, notably those concerning the possible establishment of a system of inferior federal courts and extending federal jurisdiction to suits between a state and individuals. In five of the state ratifying conventions—Connecticut, Pennsylvania, Virginia, North Carolina, and South Carolina—the new Supreme Court’s function of resolving state and federal conflicts was discussed clearly and ultimately was accepted.³⁰ In virtually all of the ratifying conventions some jurisdictional grants to the new federal court system were subjected to severe criticism. Out-and-out opponents of the Constitution, such as Robert Yates of New York, recognized the scope of the Supreme Court’s power and made the judicial grants a major point for attack on the proposed new system of government. As Brutus,’ Yates went so far as to charge erroneously that

the opinions of the Supreme Court … will have the force of law; because there is no power provided in the Constitution that can correct their errors or control their jurisdiction. From this court there is no appeal.³¹

But in the end, the nationalists managed to secure early ratification in all of the most important states.

These facts stand out as a result of this analysis of the Philadelphia Convention and the state ratifying conventions. Both the nationalists and the states’ righters were in substantial agreement on the need for a supreme judicial arbiter in federal-state relations. By 1789 it was clearly understood that the Supreme Court of the United States was to fulfill that role. Naturally enough, the nationalists tended to emphasize the aspect of judicial arbitership concerned with the protection of national supremacy against state encroachments. However, both nationalists and states’ righters explicitly recognized that the Supreme Court’s role was that of an impartial arbiter. Thus it was also anticipated that federal laws violative of states rights were to be declared unconstitutional. The prevailing contemporary conception of the new Supreme Court’s role is best illustrated by Oliver Ellsworth’s description in the Connecticut Ratifying Convention of January, 1788:

This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they made a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the general government, the law is void; and upright, independent judges will declare it so.³²

THE FIRST JUDICIARY ACT

While the constitutional framers had drawn the broad outlines of the judicial power, they had left to congressional discretion the composition of the federal courts, the extent of the appellate jurisdiction of the Supreme Court, the existence or non-existence of any inferior federal courts, and the extent of their jurisdiction. Consequently, the manner in which the first Congress dealt with these problems in the judiciary act of September 24, 1789, set the