The Role of the Supreme Court in American Government and Politics, 1835-1864

By Charles Grove Haines

This title is part of UC Press's Voices Revived program, which commemorates University of California Press’s mission to seek out and cultivate the brightest minds and give them voice, reach, and impact. Drawing on a backlist dating to 1893, Voices Revived makes high-quality, peer-reviewed scholarship accessible once again using print-on-demand technology. This title was originally published in 1957.

• Language: English
• Publisher: University of California Press
• Release date: Nov 15, 2023
• ISBN: 9780520350366

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The Role of the Supreme Court

The Role of the Supreme Court in American Government and Politics 1835-1864

CHARLES GROVE HAINES

AND

FOSTER H. SHERWOOD

UNIVERSITY OF CALIFORNIA PRESS BERKELEY AND LOS ANGELES • 1957

UNIVERSITY OF CALIFORNIA PRESS BERKELEY AND LOS ANGELES CALIFORNIA

CAMBRIDGE UNIVERSITY PRESS LONDON, ENGLAND

© 1957, BY

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

LIBRARY OF CONGRESS CATALOG CARD NO. 57-IO498 PRINTED IN THE UNITED STATES OF AMERICA

Preface

T

JLHE tragic death of Professor Charles Grove Haines on December 27, 1948, found him engaged in the preparation of this volume. It has been my privilege to complete the work started by him. Under these circumstances it is important to make clear my conception of my role, and to indicate the state of affairs when it became necessary for me to assume full responsibility.

Professor Haines had intended this volume to cover the period 1835-1885, but at the time of his death he had completed only chapters i, ii, and vii in a form requiring merely the final editing. The other nine chapters (exclusive of chapter xiii) were in the form of more or less completed case studies and interpretative essays arranged under intended chapter headings. Some of these had to be supplemented with further historical and biographical data, and the whole fitted together into the appropriate chapters. Chapter xiii, for which there was not even a skeleton, is entirely my work.

Since this volume appears under the coauthorship of Professor Haines, I have tried to preserve in its pages his own point of view, whenever it was known to me, and to exclude my own. To this end I decided to shorten the span of years covered in the volume, since I had very little in his own hand to rely on for the post- Civil War and Reconstruction era. My qualifications for assuming such a responsibility were an association of some ten years’ standing with Professor Haines, as both student and colleague, and my experience as his research assistant in the final stages of the first volume and the early stages of this one.

I was greatly assisted in making the difficult transition by Mr. John C. Hogan, Professor Haines’s last research assistant, who served me for two years after the latter’s death. He was able to supplement the written evidence of plans and objectives with much valuable information drawn from oral conversation. Mr. Hogan had also prepared a number of memoranda and special studies which were of great help in the final preparation of many chapters.

Preface

vi

Others to whom special indebtedness must be acknowledged include Miss Helen Newman, librarian of the Supreme Court Library, who was extremely helpful in supplying photostatic copies of many valuable documents in the Supreme Court archives; Mr. Thomas Dabogh for his frequent assistance as librarian of the Los Angeles County Law Library; the Massachusetts Historical Society for copies of documents important in the Rhode Island- Massachusetts boundary controversy; the Vermont Historical Society for much valuable material on the case of Holmes v. Jenni- son; and Dr. Algerdas N. Cheleden, who served Professor Haines as research assistant in preparing the early portions of this volume. The contributions of the foregoing are clearly upon the record. I can only ask the pardon of those others to whom Professor Haines would have made acknowledgment, but of whose contribution he left no record.

It is particularly important to make it clear that for errors of fact or interpretation I alone am responsible.

Foster H. Sherwood

Los Angeles, California February, 1956

Contents 1

Contents 1

CHAPTER I

THE PRINCIPLES AND POLICIES OF THE JACKSONIAN DEMOCRATS

The Impact of Political Trends upon Legal and Political Thinking from 1800 to 1840

THE SUPREME COURT AND JACKSONIAN DEMOCRACY

ROGER BROOKE TANEY BECOMES CHIEF JUSTICE

JUSTICE JOSEPH P. STORY AND HIS CONSTITUTIONAL DOCTRINES

CHAPTER II

Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge and Others69

City of New York v. Miln86

Briscoe v. Bank of Kentucky100

CHAPTER III

BANK OF AUGUSTA V. EARLE

LOUISVILLE, CINCINNATI, AND CHARLESTON RAIL-ROAD CO. V. LETSON

Marshall v. Baltimore and Ohio Railroad Co.164

CHAPTER IV

UNITED STATES V. THE AMISTAD196

Groves v. Slaughter230

Rowan et al. v. Runnels77

THE STATUS OF FUGITIVE SLAVES AND THE ATTITUDE OF THE SUPREME COURT

CHAPTER V

THE LICENSE CASES

The Passenger Cases306

Cooley v. Board of Wardens of the Port of Philadelphia341

PENNSYLVANIA v. WHEELING AND BELMONT BRIDGE Co.352

UNITED STATES v. MARIGOLD"

Veazie et al. v. Moor366

CHAPTER VI

THE FISCAL BANK BILL

THE BANKRUPTCY ACT

Peck v. Jenness16

Holmes v. Jennison400

UNITED STATES V. GRATIOT54

POLLARD V. HAGAN55

MARTIN V. WADDELL’S LESSEE58

Dobbins v. Commissioners of Erie County60

THE HABEAS CORPUS BILL

THE BOOTH CASES AND THE POWER OF THE FEDERAL GOVERNMENT To ENFORCE ITS LAWS WITHOUT STATE INTERFERENCE

CHAPTER VII

PROCEDURE FOR SETTLING CONTROVERSIES BETWEEN STATES UNDER THE ARTICLES OF CONFEDERATION

THE FEDERAL CONSTITUTIONAL CONVENTION AND THE SETTLEMENT OF INTERSTATE DISPUTES

THE CONTROVERSY BETWEEN NEW YORK AND NEW JERSEY

BOUNDARY DISPUTES BETWEEN RHODE ISLAND AND MASSACHUSETTS

OTHER CASES INVOLVING BOUNDARY DISPUTES PRESENTED TO THE SUPREME COURT BEFORE THE CIVIL WAR

CHAPTER VIII

JUDICIAL SUPERVISION OF THE EXECUTIVE DEPARTMENT

THE FEDERAL JUDICIAL POWER IN ITS RELATION TO THE STATES

THE SOURCES OF JUDICIAL POWER AND THE EXTENT OF LEGISLATIVE

CHAPTER IX

STATE BANKRUPTCY LEGISLATION AND THE RIGHTS OF PRIVATE

STATE CONTRACTS WITH CORPORATIONS

STATE REGULATION OF BANKS

THE OHIO BANK TAX EXEMPTION CONTROVERSY

CHAPTER X

THE MAJORITY OPINIONS

THE DISSENTERS

THE SEQUEL AND EVALUATION OF THE CASE

CHAPTER XI

LINCOLN’S VIEWS ON THE ROLE OF THE JUDICIARY IN AMERICAN GOVERNMENT

REPUBLICAN STRATEGY UNDER THE LEADERSHIP OF LINCOLN

WARTIME EXECUTIVE DOMINATION OF THE COURT AND CURTAILMENT OF JUDICIAL POWER As REVEALED IN Ex PARTE MERRYMAN

CHAPTER XII

THE BLOCKADE OF SOUTHERN PORTS

JUDICIAL CAPITULATION TO THE EXECUTIVE

TANEY’S RESISTANCE TO EXECUTIVE DOMINATION OF THE FEDERAL GOVERNMENT

CHAPTER XIII

THE RELATIONSHIP BETWEEN THE FEDERAL AND THE STATE GOVERNMENTS

THE PROTECTION OF VESTED PROPERTY RIGHTS AND THE RIGHTS OF

JUDICIAL SUPREMACY AND THE DOCTRINE OF THE SEPARATION OF

Table of Cases

Index

CHAPTER I

A New Era in Constitutional Interpretation

T

JLhe first part of this study1 described the primary party divisions between the conservative and liberal forces that dominated the political and social life of the people during the Colonial, Revolutionary, and critical periods of American history. These parties were particularly evident in the drafting and adoption of the federal Constitution and in the political conflicts waged during the first decades after the establishment of the new government. The volume also traced the formulation and advocacy of the essential principles of each party by the great leaders of political thinking and practice— Hamilton and Jefferson. And, more important to the study of the Supreme Court’s role in the evolution of the American system of government, it described the functions the federal courts were designed to perform in accordance with the political views and outlook of the respective groups. It was apparent that the courts were regarded as part of the political framework of the country and were intended to help implement the main planks of party platforms. The participation of the justices in carrying out the principles of Federalism during the administrations of Washington and Adams was notorious and was only partially checked by the nearly successful attempt to impeach Justice Chase. And the justices appointed by Democratic-Republican presidents were expected to interpret the fundamental law in accordance with Democratic-Republican principles. Though this party was almost continuously in control of the federal government from the inauguration of Thomas Jefferson in 1801 to the accession of Lincoln in 1861, the issues between conservatives and liberals continued to be contested throughout more than three decades of this period.

From 1801 to 1835 the Supreme Court under Chief Justice Marshall’s direction assumed the leadership in adopting the doctrines of federal supremacy and of a nationalistic interpretation of the Constitution. The Court also rendered decisions especially favorable to the protection of property and vested rights against state acts allegedly interfering therewith. These decisions were announced and became the law of the land at a time when the Democratic-Republican party controlled the legislative and executive branches of the government and received repeated popular mandates.² It can thus be readily understood why the Supreme Court was the object of persistent attacks for more than a decade, attacks which almost resulted in the adoption of measures that would have drastically limited its powers and effectively checked the tendency toward federal judicial supremacy, the main features of which had already been formulated and applied. Despite the appointment of enough Democratic-Republicans to give their party a majority on the Supreme Bench, Court decisions continued to be dominantly nationalistic and to carry out the foremost Hamiltonian doctrines of Federalism.

The accession of Andrew Jackson to the presidency in 1829 was looked upon as the dawn of a new day, when the people would control all departments of the government, and life-appointed judges would have less authority to define the rights or regulate the political conduct of the people. But it was not until the end of his second administration that Jackson was able to appoint justices who could change the current of federal judicial decisions. And the change then inaugurated was far from as significant and far-reaching as Democratic leaders anticipated. The Supreme Court from its establishment in 1789 had assumed an assertive and, not infrequently, a domineering attitude in the interpretation and application of the Constitution with respect to the powers not only of the states but also of Congress and the executive. It was taken for granted, though seldom frankly avowed, that the Court was intended to perform political functions in the process of interpreting the federal Constitution and laws and was expected, when occasion arose, to assert authority over both the president and Congress. The Court had for years assumed the role of defining and applying what were deemed to be the fundamental principles and doctrines of the American system of government as expressed or implied in the written fundamental law. These principles and doctrines, quite differently interpreted by the leaders of democratic and liberal groups, were soon to be applied in different ways and with certain marked differences in meaning.

1 xSee Charles Grove Haines, The Role of the Supreme Court in American Government and Politics, 1789-1835 (Berkeley and Los Angeles, 1944).

THE PRINCIPLES AND POLICIES OF THE JACKSONIAN DEMOCRATS

There are, of course, very different interpretations of the effects upon American government and politics of the election of Andrew

* Sec ibid., especially chaps, x-xii.

Jackson to the presidency. It is generally conceded, however, that his election symbolized an upsurge in the demands of the common people for greater participation in public affairs and in their resentment against the special advantages of privilege and aristocracy. A new type of democratic political philosophy was in process of development, and it influenced all phases of American life, including legal and constitutional interpretation, and dominated in varying degree the period from 1820 to 1860. Affecting and to a certain extent conditioning the development of this philosophy and the practices based upon it were three major characteristics of this period.1 First came the rapid growth and expansion of the country both in territory and in economic and industrial development. Second, there was a notable increase in the spirit and attitude of sectionalism. The general interests and policies of the four sections—the Northeast, the Old South, the Northwest, the Southwest—became more marked and diverse. The localism and particularism characteristic of the states during the Revolutionary and Colonial periods were, in large part, gradually transferred to these regions or sections. Third, democratic and humanitarian movements were prevalent in all sections during these decades. By the strange twistings of Fate, notes Avery Craven, the three great strands of development in the life span of a generation of Americans were tangled in such a way as to push reason aside and to give emotion full sway.2 The extent to which these strands of development affected the work of the Supreme Court will be seen in the following chapters.

It has frequently been contended that the revolt of the masses under the leadership of Andrew Jackson had no clear objectives and was predicated upon no program that could be called a political philosophy. But this is true only to a limited extent, for the masses of the people influenced by any popular movement seldom act on clearly defined or well-understood objectives; they follow their leaders. In the great democratic revolution which came about between 1825 anc* 1840, Jackson is at most points the recognized and trusted leader. He embodied with rare perfectness a political theory, at the same time that he spoke only what the mass of men everywhere thought.3 Though Jackson had little concern for any particular political program, he was an intuitive leader of people, and in a given situation his policy developed from his own sense of justice and his shrewd understanding of human psychology. No better example of this can be cited than his dramatic victory over the Bank of the United States. Regardless of errors of judgment concerning financial matters, this triumph was considered a victory for the people through Jackson’s leadership. Jackson realized the truth of Alexander Hamilton’s observation that a national bank was not a mere matter of private property, but a political machine of the greatest importance to the State.4

The spirit of Jacksonian democracy as a social philosophy designed to achieve a better way of life for the common man was expressed in Jackson’s message to Congress vetoing the bill to renew the charter for a national bank:

… but when the laws undertake to add to these natural and just advantages artificial distinctions … to make the rich richer and the potent more powerful, the humble members of society, the farmers, mechanics, and laborers, who have neither the time nor the means of securing like favors to themselves, have a right to complain of the injustices of their Government.5

This was a political philosophy soon to be given concrete application in various phases of American life.

It cannot be assumed, however, that without Jackson’s guidance there would have been no substance to the urge for democracy which prevailed for several decades. For the laboring man deprived of the right to vote by property qualifications, the policy of Jacksonian democracy was clear in its opposition to and effective in its removal of the majority of such remaining barriers to the free and equal exercise of manhood franchise. To the farmer, forced to pay dearly for transporting his produce or for the loan of money on his property, Jacksonian democracy typified the resentment of himself and many others at the dominant position and privileges of the "money power/’6 And to the rising entrepreneur, struggling to build a new business, the movement represented a tangible means of loosening the control of the existing aristocracy of power and of wealth. These and other similar objectives characterized the crusade of Jacksonian democracy against the continuance of government by the few—a crusade which was the offspring of the philosophy of democracy fostered and developed by the aristocratic humanitarian, Thomas Jefferson.

The Republican party of Jefferson had lost its hold on the people during the era of personal politics beginning with the administration of President Monroe, and many of its leaders, such as John Quincy Adams, had become part of the group who considered themselves ordained to rule. After Jackson defeated Adams for the presidency in 1828, new party alignments began to take definite shape as Adams and other Republicans joined with the Federalists in what was to become the loosely formed, conservative, and anti-Jackson group, soon to be known as the Whig party. The other emergent group, rallying around the leadership of Andrew Jackson with the new designation of Democrats, was composed of Jeffersonian Republicans, Federalists, States’ rights men, and the formerly uninfluential and unrepresented groups now engaged in the struggle to secure political and economic power.

At the time of Martin Van Buren’s election to the presidency the chief tenets of the Democratic party platform were westward expansion and equal rights and privileges for all men. For the time being the party was carried along on the wave of nationalist sentiment which followed the failure of the South Carolina secession movement, but gradually it shifted again toward the protection of States’ rights—a trend hastened and strengthened by the vigorous and persistent attacks of abolitionists on the system of slavery, prevalent chiefly in the South.

The Whigs, aiming to carry on the Federalist and nationalistic doctrines of Alexander Hamilton, received the support of manufacturing interests seeking protection for their growing industries and of merchants and bankers strongly opposing Jackson’s financial measures. Though tending somewhat to oversimplification, Frederick Jackson Turner saw in the party contests of the time a conflict between an agricultural society on the one hand, and a conservative industrial and manufacturing society of the New England type on the other. An aggressive and expanding democracy emphasizing human rights and individualism clashed with the established order which supported vested rights and the special privileges of the new and numerically increasing corporate organizations.7 Recurring again to the basic political division which prevailed during the Revolutionary War and during the formation and establishment of a central government, Thomas Hart Benton contended that there never has been but two parties … founded in the radical question, whether People or Property, shall govern? Democracy implies a government by the people. … Aristocracy implies a government of the rich … and in these words are contained the sum of party distinction.8 Truly the election of Andrew Jackson and Martin Van Buren was "a revolution in political values/*9

The emergence of Jacksonian democracy therefore coincided with the breakup of the former national parties which had controlled the political life of the country for several decades. Instead of the adjustment and compromise characteristic of the formation and early development of the American government, the parties of the Jacksonian period engaged in contests for power. The doctrines and principles which formerly divided political parties were becoming submerged in a kind of political melee in which personal and sectional views became increasingly dominant.

The constitutional principles and doctrines formulated during Federalist control of the Supreme Court proved to be of great significance in the bitter contests for public power waged by the newly formed parties. Among these doctrines was that of the separation of powers. Many of the framers of the Constitution expected informal and cooperative arrangements to develop between the departments, an expectation Washington shared in his effort to consult with the Senate on the ratification of a treaty, and, through Jefferson, to secure an interpretation of a treaty from the Supreme Court. Such efforts gave way to a somewhat rigid and impractical separation of powers, with a departmental independence that made unity of action well-nigh impossible. Furthermore, at a time when sectional feelings and interests were growing, the doctrine of federal supremacy as formulated by Chief Justice Marshall, including enlargement of the Supreme Court’s function in implementing this supremacy, tended to make difficult and cumbersome the natural and normal reference to the people of vital constitutional issues and problems. Since the base of the sovereign control of political affairs, except for the few issues that might be dealt with through amendments to the written Constitution, had been changed, largely by judicial construction, the people were induced to refer matters involving basic political differences to the departments of the central government and, not infrequently, to the Supreme Court for final settlement. The way was thus prepared for the secret and underhanded wirepulling in which politicians revel.

The solution of the issue of slavery illustrates some of these difficulties. At best it was a difficult problem to resolve, but postponement of its resolution merely led to increasing bitterness and enmity on both sides. And postponement was due in part to the conviction that the solution would have to come from the Supreme Court. Yet the Dred Scott case10 merely exaggerated the bitterness and brought it to the surface. By this time the system of undercover politics characteristic of the Federalist regime from 1789-1835—whereby a delicate pattern of checks and balances was devised with the federal judiciary asserting its right to act as arbiter between different agencies claiming sovereign powers—had fostered resentment among the representatives of vital political interests and had created a feeling that compromise was no longer possible.

It is of little use to speculate on the course of American political development if the views of Washington and Jefferson on departmental cooperation and adjustment had prevailed, and if more direct and effective means had been evolved, as Jefferson proposed, for the reference of vital political and constitutional issues to the people. Nevertheless, it now seems clear that the constitutional principles and practices developed by the Supreme Court under Federalist control, and modified only to a slight degree and in certain particulars by the Court under Chief Justice Taney, made extremely difficult the settlement of political contests involving sectional rivalry in the period 1820-1860.

Certain characteristics of the Jacksonian period of American government influenced the work of the Supreme Court. The president regarded himself as the representative of the whole people, and as such asserted the rights of the executive against the legislature and the judiciary. The veto power was put to new uses to strengthen and support the president in carrying out his policies, and through this the legislature met its first decisive check. It was in opposition to this tendency that the Whig party was organized to check and control the abuse of executive powers. For the first time the executive became the object of suspicion and distrust.11

Under Jackson’s leadership the executive won a decisive victory over the congressional aristocracy that had been in control of affairs from the time of the Revolution. Not only did Jackson and his party leaders adopt the spoils system, but the popular suspicion against an encroaching aristocracy was reflected in a movement to change the property basis of suffrage. White manhood suffrage was gradually adopted throughout all the states. The popular distrust of aristocratic control in government was also reflected in the suspicion of and hostility toward the courts. In this period, too, the term of judicial office was shortened, and constitutional provisions for popular election of judges were adopted. There was also a distinct tendency toward popular ratification of changes in state constitutions. It was scarcely to be expected, when such principles and doctrines were in the ascendancy, that the Supreme Court could adhere to the practices dominant in the operation of the federal judiciary from 1789 to 1835.

As anticipated, Chief Justice Taney and his associates adopted at the outset a less assertive attitude on political and economic matters than had the Marshall Court, and introduced judicial self-restraint into some of the Court’s major decisions. The ensuing chapters will undertake not only to evaluate the nature and significance of these new trends in the interpretation of the fundamental law, but also to consider the extent to which the ideas of Chief Justice Marshall, as well as his judicial techniques, were accepted and made an enduring part of the American constitutional structure.

1 See Avery Craven, The Coming of the Civil War (New York, 194«), pp. 3 ff.

2 Ibid., p. 15.

3 William MacDonald, Jacksonian Democracy: 1829-1837 (New York, 1906), p. 315. See also Arthur A. Ekirch, Jr., The Decline of American Liberalism (New York,

4 See Report on a National Bank, in Alexander Hamilton, Works (constitutional ed.; New York, n.d.), Ill, 424.

5 James D. Richardson, A Compilation of the Messages and Papers of the Presidents (Washington, 1897), II, 1153. It seems clear now, says Arthur M. Schlesinger, Jr., that more can be understood about Jacksonian Democracy if it is regarded as a problem not of sections but of classes. The Age of Jackson (Boston, 1946), p. 263.

6 Of this conflict Jackson wrote in 1837: It is now plain that the war is to be carried on by the monied aristocracy of numbers; the prosperous to make the honest laborers hewers of wood and drawers of water through the credit and paper system. F. J. Turner, Social Forces, 16 American Historical Review (1911), 227.

7 •Frederick Jackson Turner, The United States: 1830-1850; The Nation and Its Sections (New York, 1935), p. 30.

8 Niles* Weekly Register, Aug. 29, 1835; Schlesinger, op cit., p. 125.

9 Schlesinger, op. cit., pp. 267 ff. See also Louis Hartz, "The Whig Tradition in America and Europe/’ 46 American Political Science Review (1952), 989.

10 19 Howard 393 (1856).

11 See C. Edward Merriam, A History of American Political Theories (New York, 1906), chap. v; Harold C. Syrett, Andrew Jackson (Indianapolis, 1953), passim.

The Impact of Political Trends upon Legal and Political Thinking from 1800 to 1840

The foremost issue between the dominant political groups in the period 1800-1840 was nationalism versus localism. It had arisen from the growing fear of one group and their efforts to counteract the centralization or consolidation of the all-important powers of the nation and the states into a single or unitary government, and from the support of the other group for the opposite trend toward nationalism, as manifested in the decisions of the Supreme Court, in a tariff policy which gave an impetus to industry and commerce, and in the policy of granting aid for internal improvements within the states. Although the early leadership in formulating the political philosophy of States’ rights had come mainly from such Virginians as Thomas Jefferson, Spencer Roane, and John Taylor, the adherents of this point of view could not be categorically grouped into a sectional picture. The so-called revolution of 1800 was a vindication of the general impression of a majority of the people1 that the Federalist party had moved too rapidly and too far along the path of centralization, and was an implied endorsement of the contention of the Kentucky and Virginia Resolutions that the people, through their state governments, had the right to decide when Congress had exceeded its powers under the Constitution. New England in the War of 1812 had acted upon very positive postulates of state sovereignty and opposition to nationalism as expressed in the Hartford Convention. During the period 1800-1840 many States in turn had actively and sometimes quite vigorously resisted the encroachments of federal authority upon what were conceived to be the reserved rights of the states.

The War of 1812 marked a definite turning point, however, from localism to nationalism. It stimulated the rise of industrialism in the New England and middle Atlantic states, the increase of cotton culture in the South and its reorientation from foreign to Northern markets, the development of opportunities in the rapidly growing new West, and the emergence of an American type and spirit; all these were reflected in the nationalistic trend of politics which produced a national defense program, the Second Bank of the United States, the rise of protectionism beginning with the tariff of 1816, and aid from the central government for internal improvements.¹⁵ Between 1812 and 1840 the offices of the general government, especially the executive office, were occupied by legatees of the Jeffersonian States’ rights philosophy, but such were the exigencies of national expansion and political development that during the periods of both the conservatively motivated National Republicanism and the radical revolution under Jackson’s leadership, nationalism became increasingly predominant in the capital.

Andrew Jackson paid homage to the principle of States’ rights, fought the national bank, vetoed bills for internal improvements, and, on occasion, disregarded the decisions of the Supreme Court; although the Democratic party was mainly the party of the South, Jackson, unlike Jefferson, was a product of the practical nationalism of the new West. He departed from the principles of his great predecessor when he censored the nullification doctrines of South Carolina in the great tariff controversy. The nationalistic trends of Jackson’s administration, later sponsored by the leaders of the Whig party, were responsible for a strengthening and a reiteration of the States’ rights position which became more an expression of the sentiment of the South than of the views of the dominant groups and interests in the North and West. The controversies over the tariff and over nullification, plus the growing attacks of Northern abolitionists on the institution of slavery, led the people of the South to reassert with increasing enthusiasm the Jeffersonian principle of state sovereignty and popular self-determination.

and the new Western states as well as in the South. John D. Hicks, The Federal Union, A History of the United States to 1865 (Boston, 1937), p. 255.

¹⁶Ibid., pp. 322-345. See also Richard Hofstadter, The American Political Tradition (New York, 1948), pp. 54 ff.

Throughout the period from 1800 to 1840, Marshall, Story, Webster, and many other influential conservatives exerted upon the Supreme Court in particular and upon the country in general constant pressure in favor of a broad interpretation of the Constitution in order to restrict popular control of public affairs. It is frequently asserted that Jackson, with a liberal outlook, intuitively realized the disinclination of the people to govern themselves, and that a majority rule for him consisted in his seeing for the people what they could not see for themselves. Whether or not this is true, it is obvious that those who sought to restrict popular control, from fear either of instability or of destruction of property rights and privileges, saw in the Supreme Court a device for the gradual limitation of the popular will. It was assumed that the people would not readily recognize nor vigorously resist the Court’s unwarranted extensions of authority.

The opinions of Chief Justice Marshall and Justice Story and the briefs of Daniel Webster and other counsel for the emerging entrepreneur class had emphasized again and again in the preceding decades that the Constitution of the United States was adopted by the people and was the settled and permanent law of the land, subject to change only by amendment.2 In their opinion, it was the duty of the Supreme Court to interpret the Constitution in accordance with the designs of the conservative groups which gave it their enthusiastic support primarily for the protection of property rights. Chief Justice Marshall laid a solid foundation for this theory in Fletcher v. Peck3 and Dartmouth College v. Woodward4 by protecting the inviolability of a corporate franchise as a contract not to be impaired by a state legislature. Justice Joseph Story, until his death in 1845, tried to hold the Supreme Court in line with the traditional principles and policies of the Marshall regime. It was against this trend that Chief Justice Taney and his associates directed the main current of constitutional interpretation for more than a decade.

1 The only solidly Federalist territory in this election was New England, New Jersey, and Delaware; the Jeffersonian Republicans led in New York, Pennsylvania,

2 This contention completely denies the States’ rights doctrine that the Constitution was adopted by sovereign states, and that its provisions were, in part or in whole, subject to voidance at will by the people of those states.

3 6 Cranch 87 (1810).

4 4 Wheaton 518 (1819). See also Marshall’s views regarding the protection of property rights in Haines, op. cit., pp. 624-628.

THE SUPREME COURT AND JACKSONIAN DEMOCRACY

The threat to property privileges and advantages implicit in the spirit of the Jacksonian democratic movement was more annoying and menacing to the aristocratic-conservative interests which had heretofore governed the country than were the bad manners and boisterous conduct of the job-seekers and partisans of the new Democratic party machine. Like Jefferson before him, Jackson found a substantial bar to his progress toward the establishment of democratic ideals and principles in the decisions and potent influence of the Supreme Court. For more than thirty years Chief Justice Marshall had maintained the Court as a strong and effective bulwark against the inroads of the democratic spirit, and had used it as the agent of a weakening Federalist party to hamper the effectiveness of the democratic principles sponsored by Jefferson and his successor.1 In McCulloch v. Maryland2 Marshall had upheld the constitutionality of the Bank of the United States, and yet Jackson, when confronted by the question of renewing the charter, opposed the bank as unconstitutional. In his famous veto message of July 10, 1832, Jackson specifically challenged the Marshall Court’s opinion on the questions of constitutionality and of its final authority to determine such matters. In regard to the second question he said, as had Jefferson and Roane before him:

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. … The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive, when acting in the legislative capacities, but to have only such influence as the force of their reasoning may deserve.3

The extent to which the Supreme Court under Chief Justice Taney’s leadership broke with the principles and doctrines of Chief Justice Marshall and his associates is frequently exaggerated. This exaggeration is due, at least in part, to an overemphasis on the somewhat spectacular phases of the so-called Jacksonian Revolution.4

Though Jackson brought into the management of national affairs some of his frontier ideas, and was willing to accord the people a larger share in the control of the government than had the leaders of the Democratic-Republicans, now called Democrats/’ these aspects of Jackson’s administration can easily be overrated. It is true that Andrew Jackson grew up in a frontier society, but it should not be forgotten that he had become a man of property, a cotton planter, a leader who used his leadership to protect the interests of himself and conservative friends in days when all men on the frontier, in the midst of abundant opportunities, strove to build up their fortunes.²³ Many people believed that Andrew Jackson’s reign, as it is frequently called, meant rejection of the rule of the better classes, that is, the intelligent and well-to-do, but his administration, as Turner describes it, conformed to the general drift of the tendencies of this New World democracy—a democracy which preferred persons to property, an active share by the people in government to the greater system and efficiency of a scientific administration by experts or by an established elite who dealt with the people from above."²⁴

It will be seen in the review of the Supreme Court under Chief Justice Taney’s direction that a Court which made a marked contribution toward the protection of human rights and the preservation of local self-government veered gradually toward the constitutional interpretation so ably expounded by Marshall. This interpretation gave primary concern to the development of national supremacy and to the protection of vested rights of persons and of corporations.

1 See Haines, op. cit., chap. xi; Albert J. Beveridge, The Life of John Marshall (Boston and New York, 1919), IV, 461-517; David Loth, Chief Justice John Marshall and the Growth of the Republic (New York, 1949), chaps, xiii ff.

2 4 Wheaton 316 (1819).

3 Richardson, op. cit., II, 1145. See Haines, op cit., pp. 605-607.

4 For example, Samuel E. Morison and Henry S. Commager call the Democrats the party of poverty and numbers, and the Whigs the party of property and talents. … It was the Whigs, they feel, who carried on the nationalist and paternal tradition of Hamilton. The Growth of the American Republic (3d ed.; New York, 1942), I, 558.

ROGER BROOKE TANEY BECOMES CHIEF JUSTICE

Roger Brooke Taney of Baltimore had been a Federalist before joining the Jacksonian Democrats. An able and highly respected lawyer, he had been selected by President Jackson as attorney general, and supported the president in his fight against the Bank of the United States. Jackson later appointed him secretary of the treasury. As head of this department, Taney removed the deposits of the federal government from the Bank of the United States and apportioned them among the pet state banks chosen by the Jackson administration. When Jackson, waiting until a week before the adjournment of Congress, presented Taney’s name to the Senate for confirmation as secretary of the treasury, it was rejected.

It seemed to Taney that the American people in the struggle with

23 Turner, The United States: 1830-1850, p. 25.

²⁴Ibid., p. 28.

the bank were facing for the first time an issue that had long confronted the older nations of the world. It remained to be determined, he thought, whether the power of the government would be exclusively in the hands of the great money-holders, or would continue where the Constitution had placed it, in the hands of a free and enlightened people. He saw in the opposing principles which had long agitated the countries of Europe an issue vastly more important than a conflict between political parties. It was, he had come to believe, a struggle for sovereignty between an economic class on the one hand, and the whole people on the other. Now for the first time, said he, the issue is made up, and the question boldly and distinctly presented to us, whether this noble country is to be governed by the power of money in the hands of the few, or by the free and unbought suffrages of a majority of the people. It is a new question. It has nothing to do with the ancient or modern divisions of parties.1 The story of how and why Roger B. Taney came to distrust bankers and to have a fear of so- called money-masters has often been told and need not be repeated.2 It was a point of view reflected in some of his most important opinions as a Supreme Court justice.

Determined to reward Taney for his part in the bank war, the president nominated him for a place on the Supreme Court. When this appointment was also rejected, Jackson bided his time and soon after the death of Chief Justice Marshall sent to the Senate the nomination of Taney for the chief-justiceship. The action of anti-Jackson senators in twice rejecting Taney’s name resulted only in his appointment to the highest judicial office in the country. Henry Clay, John C. Calhoun, and Daniel Webster led the opposition to the confirmation of Taney as chief justice; owing to the increase of Democratic strength in the Senate, their efforts were unsuccessful, and on March 15, 1836, Taney’s appointment was confirmed. At the time of Taney’s accession to the Supreme Court the president had appointed five of the seven justices; only Justices Story and Thompson remained from the old regime.3 A year later the number of justices on the Court was increased to nine, and Jackson filled the two new vacancies just before the inauguration of Van Buren.²⁸

Taney’s accession was the occasion for dire forebodings by anti- Jackson conservatives. Only a few Whigs conceded the chief justice’s outstanding ability as a lawyer, but even they deplored his close association with the Jackson administration. Most of the conservatives affiliated with the Whig party agreed with Webster, who, in writing his wife that he expected Taney to be selected as chief justice, said: "Judge Story arrived last evening, in good health but bad spirits. He thinks the Supreme Court is gone, and I think so too; and almost everything is gone, or seems rapidly going/’²⁹ The New York Globe expressed the opinion of most Whig leaders that Taney would be remembered as the man who had illegally removed the deposits, had aided in defeating the renewal of the bank’s charter, and had helped to create panic and bankruptcy in the land.³⁰ Although admirers of Chief Justice Marshall expressed keen regret that a political tool should succeed to the office he left vacant, Marshall himself thought highly enough of Taney’s ability to have attempted privately to aid his

²⁸ See act of Mar. 3, 1837, 5 U.S. Stat. at L. i76. The day before President Jackson retired from office, Congress passed this act adding two new justices to the Court. As one of his last official actions, President Jackson on March 4, 1837, nominated William Smith of Alabama and John Catron of Tennessee for the new positions. Both men were commissioned on March 8, 1837, but Smith declined to accept the appointment (probably owing to his advanced age) and was replaced by John McKinley of Alabama, who was first commissioned in the recess of April 22, 1837, anc* then recommissioned on September 25, 1837, after receiving confirmation by the Senate. See the authorized table of Supreme Court appointments and commissions by J. C. Bancroft Davis in the special Appendix to the Reports of the Decisions of the Supreme Court of the United States from September 24, 1789 to the End of the October Term, 1888 (New York, 1889), also in 131 U.S. App., v-x. Concerning Supreme Court appointments during this period, Marquis James observes that Jackson, in his eight years, named six, or more than any previous President except George Washington. He could have named seven, for the Court was passed on to his successor with one vacancy. Andrew Jackson: Portrait of a President (New York, >937). p. 708.

²⁰ Claude H. Van Tyne, ed., The Letters of Daniel Webster (New York, 1902), p. 198, letter of Jan. 10, 1836. Webster later sought to excuse the appointment of Taney on the ground that a worse man might have been chosen for the position. Webster to Davis, Apr. 7, 1836, cited in Swisher, op. cit., p. 323.

⁸⁰ Samuel Tyler, Memoir of Roger Brooke Taney (Baltimore, 1872), p. 240. Although little attempt was made to reply to the final outburst of criticism against the appointment, Swisher observes that "the Globe made an exception in the case of the prediction of a New York paper that Taney would always be known as the man who had illegally removed the deposits, violated the charter of the bank, and created panic and bankruptcy in the land, and was paid for doing so with the office of Chief Justice. The Globe replied that on the contrary the high office would be respected because of the virtue of its incumbent." Washington Globe, Apr. 2, 1836, quoted by Swisher, op. cit., p. 323.

appointment as associate justice of the Supreme Court in 1833.4

Not all observers agree with the frequently expressed charge that the Supreme Court was packed with the political devotees of Andrew Jackson and was therefore biased and incompetent. Marquis James voices the opinion, accepted by an increasing number of historians and legal scholars, that Taney’s appointment marked the beginning of an era in the Court’s history which was to remold its thought and carry into its decisions (excepting those on the Negro question) the liberal social spirit having as its goal the greater well-being of common men.5 And it is now generally recognized that within a few years of Taney’s accession to the Bench most of the resentment against the Court, prevalent during the closing decade of the Marshall regime, and most of the fears and disappointments expressed when Taney was elevated to the chief-justiceship had subsided or had disappeared altogether. The Supreme Court, now substantially in political harmony with the other branches of the federal government, acquired a position of confidence and respect greater than at any previous time.6

Like his predecessor, Chief Justice Taney was elevated to the Supreme Bench from the arena of active political life. And following in the footsteps of Marshall he continued his political activities after he had become a member of the Court. After his confirmation Taney wrote a letter to the president in which he not only expressed his appreciation for the appointment, but also rejoiced that he had been elevated to the Bench despite the vindictive persecution of the Senate.7 As expected, he continued his active political connections with the Jackson administration. A copy of the president’s annual message to Congress was submitted to Taney with a request for his opinion. Taney also gave advice to local leaders on issues of state politics. Several months after receiving his commission in March, 1836, Taney returned to Jackson a draft of a veto message on a bill for the charter of banks in the District of Columbia. He advised the president not to veto the measure.

When the Senate passed Benton’s resolution expunging from its records the resolution condemning Jackson for removing the deposits from the Bank of the United States, Taney congratulated the president on his proud and noble triumph, in which an indelible and enduring mark of reproach, which a faction endeavored to fix upon you, has, by the command of millions of people, been stamped upon their own foreheads.8 Jackson’s Farewell Address was largely composed by Taney, and after the president’s retirement Taney kept in close touch with him by correspondence in which he freely discussed political matters. The chief justice was also called upon and felt it his duty to give advice to President Van Buren, particularly with regard to the currency and financial matters. Van Buren also consulted Taney as to federal appointments. Thus the judicial policy of active participation in political affairs, begun during the administrations of Presidents Washington and Adams and carried on by members of the Supreme Court under Marshall’s direction, was continued with the approval of the leaders of the Democratic party.

Before the Dred Scott case only a few important controversies over slavery came to the Supreme Court for decision, and in dealing with them the justices showed no distinct division along sectional lines. But the Dred Scott case and the slavery controversy, a major cause of the outbreak of armed conflict and of the bitter feelings during the war, have led to a warped and at times unfair interpretation of the Court’s work under Taney. Special consideration must therefore be given to the slavery cases as well as to the continuing clashes of opinion, both legal and constitutional, over States’ rights. The two main schools of constitutional interpretation of States’ rights are best exemplified in the doctrines supported by Justice Story—regarded as the successor of Marshall in the defense of federal supremacy and nationalism—and the Democratic-Republican reliance on the ultimate authority of the states, ably defended by Abel P. Upshur in his review of Story’s Commentaries on the Constitution.

Chief Justice Taney was the controlling and most influential member of the Court for approximately twenty years, from 1837 to 1857. His influence and active participation in the work of the Court declined considerably after the decision in the Dred Scott case and the beginning of the Civil War. Though many of the decisions of the Court during these two decades show the distinctive impress of Taney’s legal and juristic thinking, the period, unlike much of the long Marshall regime, was characterized by many and vigorous dissents and by frequent divisions of the justices. These dissents and divisions often make it difficult to discover the actual grounds for the judgment and decision.

It is customary to emphasize that the Court, under Taney’s leadership, turned away from nationalism and toward support and protection of the rights of the states. Though some decisions, such as those in the Charles River Bridge case9 and in certain cases affecting interstate commerce, fit into this pattern, there were at the same time some nationalistic decisions of equal importance. It is well to remember that Chief Justice Taney had formerly been a member of the Federalist party and had been impressed, during his formative years, with its nationalistic doctrines.10 These doctrines no doubt formed the background for some of Taney’s major decisions on constitutional issues. Bank of Augusta v. Earle,11 Holmes v. Jennison,12 and Ableman v. Booth13 are among the cases in which nationalistic views were pronounced by the chief justice. And the gradual evolution of the Court’s authority and procedure in the handling of boundary disputes between states, in which Taney finally triumphed, also tended to strengthen and enhance the position of the Court as a national agency.

1 25 Charles W. Smith, Jr., Roger B. Taney: Jacksonian Jurist (Chapel Hill, 1936), p. 68.

2 See especially Carl B. Swisher, Roger B. Taney (New York, 1935), pp. 164 ff., 296-298.

3 The associates of Taney appointed by Jackson were Justices McLean, Baldwin, Barbour, and Wayne. Barbour’s name was submitted at the same time as Taney’s. The Jacksonian period featured a bitter political irascibility. Eight nominations were denied confirmation. These constituted 44 per cent of the whole number of rejected or postponed nominations. Cortez A. M. Ewing, The Judges of the Supreme Court, I’jSy-iyj'j (Minneapolis, 1938), p. 31.

4 Marshall wrote to Senator Benjamin Leigh of Virginia, If you have not made up your mind on the nomination of Mr. Taney, I have received some information in his favor which I would wish to communicate. Tyler, op. cit., p. 240.

5 James, op. cit., p. 708. See also Morison and Commager, op. cit., I, 551 ff.

6 Charles Warren observes that the time had arrived when a change in the leadership of the Court was possibly desirable. … In view of the changes and reforms which were now taking place in the economic and social conditions, and the liberalization of political sentiment and processes which was marking out a new era in the country’s development, he [Marshall] was clearly out of touch with the temper of the times and less fitted to deal with the new problems of the day than with the great constitutional questions of the past. The Supreme Court in United States History (Boston, 1922), II, 273, 274. The attack upon Taney’s appointment, Warren observes, was entirely political. Ibid., p. 285.

7 See Andrew Jackson Papers, vol. 93, Mar. 17, 1836, Library of Congress.

8 ⁸⁶ Bernard C. Steiner, Life of Roger Brooke Taney, Chief Justice of the United

9 States Supreme Court (Baltimore, 1922), p. 241.

10 ⁸⁶11 Peters 420 (1837).

11 ³⁷ This view is concurred in by Morison and Commager, op. cit., I, 559.

12 ³⁹14 Peters 540 (1840).

13 21 Howard 506 (1858). See also Genesee Chief v. Fitzhugh, 12 Howard 443 (1851).

JUSTICE JOSEPH P. STORY AND HIS CONSTITUTIONAL DOCTRINES

When Roger B. Taney became chief justice, the oldest member of the Court in length of service was Joseph Story. Story’s work on the Court from the time of his appointment by President Madison in 1811 to the death of Chief Justice Marshall has been dealt with in the first part of this study. No doubt Madison and Jefferson had hoped that Story, as an avowed Republican, would help to check some of Chief Justice Marshall’s already apparent tendencies toward nationalism. The account of Story’s conversion to the view of Marshall and his gradual adoption of even stronger nationalistic principles than those of the chief justice need not be retold.1 Story not only presented his ideas in judicial opinions but also revised and elaborated on them in the numerous legal treatises he prepared and published. Elected to the Nathan Dane Professorship of Law at Harvard University in 1828, Justice Story was connected with Harvard until his death in 1845.

In 1832 his first legal treatise, Commentaries on Bailment, was published. And, in rapid succession for works of this character, there came from the press Commentaries on the Constitution in 1833, treatises on the Conflict of Laws in 1834, Equity Jurisprudence in 1836, Equity Pleading in 1838, Agency in 1839, Partnership in 1841, Bills of Exchange in 1843, anc* Promissory Notes in 1845. Along with Chancellor Kent, Story may well be regarded as the creator of the American system of common law.2 But for the present we are chiefly interested in his constitutional views and doctrines.

Story’s Commentaries on the Constitution from the time of its publication took a high place in the field of legal scholarship. Its favorable reception by the bench and bar led to the preparation of a condensed version. In a pamphlet published in 1840⁴³ Abel P. Upshur carefully reviewed Story’s treatise and refuted what he deemed to be its nationalistic theories. The refutation was so well done that in 1863 Northern Democrats reprinted Upshur’s pamphlet as a means of setting forth the philosophy of the Confederacy.

Upshur thought it surprising that a work so elaborate as Story’s Commentaries and one so likely to have a marked influence on public opinion should have been so little discussed by those who did not concur in the author’s views. After commenting on Story’s great learning, Upshur observed that he has also been an attentive observer of political events, and although by no means obtrusive in politics, has yet a political character, scarcely less distinguished than his character as a jurist.3 Turning to the partisan features of this constitutional treatise, Upshur noted that many of the powers claimed for the federal government by Story’s political party depended upon a denial of the separate existence, sovereignty, and independence uniformly claimed for the states by the opposing party. Story’s prime objective was to impress upon his readers the idea that the inhabitants of the several colonies formed one people, a hypothesis known as the organic theory of the formation of the federal union.4 Upshur explained it in this way:

The great effort of the author, throughout his entire work, is to establish the doctrine, that the Constitution of the United States is a government of the people of the United States, as contradistinguished from the people of the several states; or, in other words, that it is a consolidated and not a federative system. His construction of every contested federal power depends mainly upon this distinction; and hence the necessity of establishing a one-ness among the people of the several colonies prior to the Revolution.5

But the term one people in a real political sense implies a common sovereign to which the people owe allegiance. Tested by this criterion the people of the American colonies were in no conceivable sense one people. They owed allegiance to the king but not to any common sovereign. To support his hypothesis Story maintained that the first Congress of the Revolution was a general or national government and that "it was organized under the auspices and with the consent of the people, acting directly in their primary, sovereign capacity, and without the intervention of the functionaries to whom the ordinary powers of government were delegated in the colonies. He inferred from its exercise of powers, which were ill-defined and in part usurped, that from the moment of the declaration of independence, if not for most purposes at an antecedent period, the United Colonies must be considered as being a nation de facto."*⁷ Thus the organic theory of the national government as the agency of a unitary state was expressly and emphatically approved.

Upshur criticized as not in accord with the facts Story’s defense of the organic view with respect to the purpose and effect of the Declaration of Independence. The representatives of the various states, he maintained,

… were strictly agents or ministers of independent states, acting each under the authority and instructions of his own state, and having no power except such as those instructions conferred. The states themselves were not bound by the resolves of Congress, except so far as they respectively authorized their own delegates to bind them.

And, contrary to the organic method of interpretation, Upshur did not regard the Continental Congresses as constituting a government in the sense that Story attached to the word. They lacked the quality of permanence implied in the notion of a real government. They could not pass or devise obligatory laws, nor could they devise obligatory sanctions by virtue of any inherent powers. By the Declaration of Independence the colonies became independent states, and from then until the Articles of Confederation were adopted the only governmental authority was that derived from the consent and acquiescence of the several states. Upshur therefore regarded as unwarranted the assertion that the Continental Congresses exercised de facto and de jure a sovereign authority, not as delegated agents of the de facto governments of the colonies or states, but by virtue of original powers derived from the people.

Upshur commented on the fact that both Justice Story and Chief Justice Marshall in their judicial opinions assumed the unity and consequent sovereignty of the people of the United States. This assumption was based on the insecure ground of the phrase in the Preamble, We, the people of the United States. Upshur readily demonstrated that, in adopting this phrase, the makers of the Constitution had no intention to create a compulsive federation instead of a confederation of states. Nor, he thought, did Story’s reasoning support his position that the Constitution was not a compact but a government or federation. New Hampshire and Massachusetts expressly called the Constitution a compact. Noting the weakness of the argument on this point, Upshur observed:

Those who contend that our Constitution is a compact, very properly place their principles upon much higher ground. They say that the Constitution is a compact, because it was made by sovereign states, and because that is the only mode in which sovereign states treat with one another. The conclusion follows irresistibly from the premises; and those who would deny the one, are bound to disprove the other. Our adversaries begin to reason at the very point at which reasoning becomes no longer necessary. Instead of disproving our premises, they assume they are wrong, and then triumphantly deny our conclusion, also. If we establish that the Constitution was made by the states, and that they were, at the time, distinct, independent and perfect sovereignties, it follows that they could not treat with one another, even with a view to the formation of a new common government, except in their several and sovereign characters. They must have maintained the same character when they entered upon that work, and throughout the whole progress of it. Whatever the government may be, therefore, in its essential character, whether a federative or a consolidative government, it is still a compact, or the result of a compact, because those who made it could not make it in any other way. In determining its essential character, therefore, we are bound to regard it as a compact, and to give it such a construction as is consistent with that idea. We are not to presume that the parties to it designed to change the character in which they negotiated with one another. Every fair and legitimate inference is otherwise. Its sovereignty is the very last thing which a nation is willing to surrender; and nothing short of the clearest proof can warrant us in concluding that it has surrendered it. In all cases, therefore, where the language and spirit of the Constitution are doubtful, and even where their most natural construction would be in favor of consolidation, if there be any such case, we should still incline against it, and in favor of the rights of the states, unless no other construction can be admitted.⁴⁸

Upshur also attacked Story’s claim of supremacy or finality for decisions of the Supreme Court, especially the contention that these decisions are absolutely binding on the states and their people. According to Upshur, the federal courts performed no more than the ordinary functions of the judiciary in any country. It was their proper province to interpret the law, but their decisions were binding only on the parties litigant. Upshur asserted, however, that there were

… many cases involving questions of the powers of government, state and federal, which cannot assume a proper form for judicial investigation. Most questions of mere political power, are of this sort; and such are all questions between a state and the United States. As to these, the Constitution confers no jurisdiction on the