The Supreme Court’s assertion in Marbury v. Madison (1803) of the power of judicial review, the authority to declare federal governmental acts unconstitutional, did not consider the question of whether federal courts could review state legislation and state judicial decisions. But that question would emerge in the hurly-burly of the young republic as citizens wrestled with the significant legal and political changes in the American landscape wrought by adoption of the new Constitution.
A century later, secure in his knowledge and approval of how the Supreme Court had addressed, and resolved that issue, Justice Oliver Wendell Holmes captured its profound importance for the nation: “I do not think,” he observed, “the United States would come to an end if we lost our power to declare an act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states.”
Justice Holmes’s insight reminds us that the authority of the federal courts to review and judge state acts and laws, is, indeed, indispensable if the Constitution is to stand as the supreme law of the land. Three memorable Supreme Court opinions pulled that principle from various constitutional provisions, thus laying, after Marbury, the second cornerstone of America’s constitutional architecture. The three landmark opinions — Fletcher v. Peck (1810), Martin v. Hunter’s Lessee (1816) and Cohens v. Virginia (1821) — are cases taught in every undergraduate and law school constitutional law course across the country.
Fletcher v. Peck enjoys immortality as the first case in which the Court exercised the authority to declare a state law unconstitutional. Fletcher is a case worthy of a John Grisham novel. It involved one of the most corrupt land deals in American history. The Georgia legislature had sold some 35 million acres in the Yazoo territory, which today encompasses most of Mississippi and Alabama, to various New England land investors at very low rates in return for massive bribes. A subsequent legislature attacked the corrupt land sale and rescinded the deal.
The Fletcher case was a lightning rod for the heated disputes and debates that engulfed the Federalists and the Jeffersonian-Madisonian Republicans. The Federalists hoped the courts would protect commercial interests and private property, including the interests of the original investors, despite the fraud and corruption that surrounded the sale. Republicans, on the other hand, embraced the right of a subsequent legislature to remedy the corruption and act in the interest of recent settlers and farmers, a vision that rejected the authority of an older generation to rob the state of its future.
Chief Justice John Marshall, who authored the great majority of the Court’s opinions during his tenure as Chief, wrote for the Court in Fletcher and declared that the new Georgia law — the rescinding statute — violated the Contract Clause of the Constitution (Article I, section 10), which states: “No state shall ... pass any ... Law impairing the Obligation of Contracts.”
Marshall’s opinion held that the Court might not inquire into the motives of the legislature that passed the initial legislation providing for the land grant. A land grant was a contract, Marshall reasoned, and it was ironclad and irrevocable.
The decision was significant for the economic growth of the young nation. It protected private property and contracts and sent a strong message to investors and others who, without that security, would not have agreed to buy and develop property. Who, after all, would purchase land from the government if they knew that their contract might be rescinded by the legislature? So thought Marshall and his colleagues on the bench. Throughout Marshall’s 35-year career on the high tribunal, his rigid interpretation of the Contract Clause proved to be the principal mechanism for the protection of property rights. His view, however, would be overtaken in mid-century by a more pragmatic interpretation that balanced private property rights with community needs and permitted state regulation of land in the name of public use.
Chief among this trio of great cases was Martin v. Hunter’s Lessee, in which the Court held that the Supreme Court’s appellate jurisdiction, articulated in Article Three of the Constitution, along with federal law — Section 25 of the Judiciary Act of 1789 — empowered the High Court to review state courts’ civil decisions. The case involved some of Chief Justice Marshall’s own land, and so he rightly recused himself. His close ally on the Court, the legendary Justice Joseph Story, wrote the opinion for the Court, setting forth landmark rulings on fundamental issues involving the Constitution.
Essentially, Virginia’s high court had upheld the state’s confiscation of land owned by British loyalists, despite provisions in the Jay Treaty (1796) that prohibited such acts. The Supreme Court, through the exercise of its appellate jurisdiction, reversed the Virginia decision in Farifax’s Devisee v. Hunter’s Lessee, but the state of Virginia refused to obey the Supreme Court’s mandate. Virginia judges rejected the authority of the Supreme Court to review its civil decisions, based on a “sound construction” of the Constitution, and declared that Section 25 of the Judiciary Act of 1789 — the first act passed by the First Congress — was itself unconstitutional for attributing appellate jurisdiction over state court’s civil decisions to the Supreme Court.
Justice Story’s powerful opinion rejected the Virginia court’s arguments. He invoked the Preamble, emphasizing its textual language that “we the people,” not the states, have ordained and established the Constitution. The sovereign people, Story wrote, have the right to place in the Constitution any powers they deem “proper and necessary” in the departments of the federal government, including the Article Three grant of appellate jurisdiction to the Supreme Court. State judges, Story explained, drawing upon the language of Article VI — the Supremacy Clause — provides that the Constitution, laws of the United States and treaties are the law of the land, and that state judges are duty bound to obey and enforce this provision.
“That is not all,” Story continued, an exercise in as thorough an opinion exploring fundamental provisions of the Constitution as any crafted before or after his opinion in Martin v. Hunter’s Lessee. Considerations of “uniformity” alone would call for his interpretation of Article Three and federal law. Unless the Supreme Court possessed the authority to review the civil decisions of state courts across the nation, the laws of the United States, treaties and the Constitution itself might “be different in different states,” which would result in “jarring and discordant” judgments that would undermine, indeed, destroy, the meaning of the Constitution and the very existence of the Union.
The need for uniformity in the interpretation of the Constitution had been obvious to the founders. Various framers — Alexander Hamilton and James Madison, among others — had addressed it in the Constitutional Convention. Hamilton in New York, and again in the Federalist Papers, and James Iredell in North Carolina, among others in the state ratifying conventions, had warned of the problem of “as many adjudications on the same subject as there are States.”
Story’s opinion and reasoning could not have been more clear or compelling. But advocates of states rights, those whom a prominent scholar characterized as “the minions of disunion,” continued their cause, particularly in Virginia. Five years later, in Cohens v. Virginia, Chief Justice Marshall, himself a Virginian, reiterated Story’s arguments, applied them to criminal law, and firmly rejected the anarchic contentions of his home state.
The Cohens Court’s affirmation of the reasoning and principles set forth in Fletcher v. Peck and Martin v. Hunter’s Lessee seemingly ended the aspirations of the “minions of disunion.” After all, had not Hamilton in Federalist No. 80 sufficiently warned the citizenry: “Thirteen independent courts of final jurisdiction over the same causes, arising under the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.”
Undaunted by the framers’ blueprint for constitutional government, the clear architecture of Article Three, the subordination of state judges and other state actors to the Supremacy Clause and, of course, the superior reasoning of Story and Marshall, the minions trudged on. They were on a path to the claims of nullification and secession, claims that we engaged next week.