How the States used to handle SCOTUS

[Originalist]

This is a little lengthy but very informative.


In the early days of the USA, there was still no doubt as to who was boss, that is, who had the final say, and it was not the Supreme Court.

At the Constitutional Convention it was decided that each State would decide whether or not to ratify the Constitution, not through their state legislature, but through ratifying conventions of the people. The people of each State, and not their State legislatures, were the true sovereigns. Thus as sovereigns it should be they who decide their own future as to whether or not they should become member States in the proposed new Union under the Constitution that was designed in Philadelphia to replace the Articles of Confederation.

At the Constitutional Convention it had been decided that the ratification of nine States of the new Constitution would be sufficient for that document to be the law of the land “between those States ratifying the same”. On June 21, 1788 New Hampshire became the ninth state to ratify the Constitution and the new union to replace the one under the Articles of Confederation was underway between the nine states that had ratified it. While the remaining four states continued to debate the future with their sister states, the new American union commenced with nine members. Due to deep concerns about the proposed Constitution, four States continued to hold out over ratification, those states being Virginia, New York, North Carolina and Rhode Island. Interestingly enough, Rhode Island did not ratify the constitution until June 29, 1790, choosing to remain out of the Union until that time. As a sovereign republic, it was her right to do so.

Of all the state ratification conventions, Virginia’s sheds the most light on the deep concerns some had over the proposed constitution. One of the main concerns among anti-Federalists like Henry, Greyson and Mason was the power of the Federal Judiciary, in particular, the Supreme Court. All three of these men felt that since the Supreme Court was actually a branch of the Federal Government, that one day less than honorable men would arise who would not be faithful to the original intent of the Framers and would actually use the court as a means to expand Federal power and to destroy the State governments. Men such as Madison , Marshall and Pendleton could not convince the anti-Federalists that they were only imaging dangers to the States from the Federal Courts that the new constitution would create. In the end the Federalists prevailed and Virginia ratified the Constitution. But it did not take long for all to see that the dangers prophesied by the anti-Federalists concerning the Federal Judiciary had not been figments of their imagination.
But how did the states in the early days of the Union handle encroachment of their rights by the Federal Judiciary? Did they meekly submit to unconstitutional rulings or did they stand up for their rights? Below is a portion of an essay by James Jackson Kilpatrick that will shed much light on this topic. Pay close attention to how the State of Georgia handled an infringing Federal Court….

2: The Chisholm Case:

IT WILL be recalled that Section 2 of Article III of the Constitution extended the Supreme Court’s jurisdiction to “controversies . . . between a State and Citizens of another State.” There was no question that a State could bring such an action. Georgia, in 1792, had brought an action against one Brailsford, a British subject, to confiscate payment of a debt that was owed him.(3) But it was equally clear, or so the States thought, that no citizen could sue a State without the State’s consent. Hamilton, among other advocates of the Constitution, had declared this immunity to be “inherent in the nature of sovereignty.”(4)

In the autumn of 1792, in Virginia, came rumblings of a storm ahead. Suit was filed in the Supreme Court of the United States against the Commonwealth of Virginia by the Indiana Company, seeking clear title to certain lands “between the Alleghany Mountains and the river Ohio, above the mouth of the Little Kanawha Creek.” The company contended that it held valid title as the result of a deed, in 1768, from the Six United Nations of Indians.
But Virginia did not agree to this at all. Thirteen years earlier, on June 12, 1779, the Virginia General Assembly had disposed of the claim: “All deeds which have been or shall be made,” said the Assembly at the time, “by any Indians, or by any Indian nation or nations, for lands within the limits of the charter and territory of Virginia . . . to or for the use or benefit of any private person or persons, shall be, and the same are hereby declared utterly void, and of no effect.”

Yet here, in a new Union, before a new court, was the Indiana Company again reviving its claim. On December 18, 1792, the Virginia Assembly adopted a brief resolution. Because it marks a significant step in the beginnings of State interposition, it merits quotation substantially in full. The resolution first recalled the Assembly’s action of 1779, and continued:

“From the foregoing resolutions it appears, that the claim of the Indiana Company, has been already decided on by the legislature of this Commonwealth: Your committee are therefore of opinion, that such decision having been made previous to the adoption of the present Constitution, and under the former instrument of confederation (which expressly guaranteed perfect and unimpaired sovereignty as to all matters of internal government to all the States leagued under it) cannot be again called in question, before any other tribunal than the General Assembly of this Commonwealth, without a dangerous and unconstitutional assumption of power, which, if exercised, would give birth to a series of pernicious and disgraceful consequences, the extent and duration of which it is hardly possible to measure or calculate.”
Resolved therefore, That the jurisdiction of the Supreme Court of the United States, does not and cannot extend to this case, it having been already decided on before a tribunal fully competent to its decision.

Resolved, That the State cannot be made a defendant in the said court, at the suit of any individual or individuals.

Resolved, That the executive be requested, to pursue such measures in this case, as may to them seem most conducive to the interest, honor and dignity of this Commonwealth.”(5)

Look back at that language for a moment. Here, in 1792, was Virginia saying bluntly that the court’s jurisdiction “does not and cannot extend” to a certain case, and further, that Virginia “cannot be made a defendant in the said court.” Here was Virginia instructing her Governor to take “such measures” as he deemed conducive with the “interest, honor and dignity” of the State. One hundred and sixty-four years later, it will be seen, Virginia was to echo the language.

Before the Indiana Company could perfect its suit against Virginia, however, Alexander Chisholm of South Carolina, in the fall of 1792 filed suit in the Supreme Court against the State of Georgia. Chisholm appeared as executor of one Robert Farquhar, seeking recovery of property confiscated during the Revolution. Chisholm appeared, but Georgia did not.

On December 14, 1792, a resolution was offered in the Georgia House of Representatives declaring that for the State of Georgia to respond to Chisholm’s petition would not only involve the States in numberless law-suits. Acquiescence before the Court, it was said, also would effectually destroy the retained sovereignty of the States, and would actually tend in its operation to annihilate the very shadow of State government, and to render them but tributary corporations to the government of the United States.(6)

Therefore, Georgia would not appear. Georgia would not be bound by the court’s decree, whatever it might be. The Court was acting in a fashion “unconstitutional and extra-judicial.” But the case came on to be heard the following February, and on February 18, 1793, in one of the milestone decisions of the Court, Pennsylvania’s James Wilson had this to say:

“This is a case of uncommon magnitude. One of the parties to it is a STATE; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and may, perhaps, be ultimately resolved into one, no less radical than this—”do the people of the United States form a NATION ?”(7)

To the majority of the Court, there was no question of this. A nation had in fact been formed by “the People of the United States,” among whom were the people of Georgia. And in this nation, judicial authority over all things, over even the State of Georgia, had been vested in the high Court. That had been the will of the people of Georgia. They had joined others in forming themselves “into a nation for national purposes.” They had instituted, for such purposes, “a national government, complete in all its parts, with powers legislative, executive and judiciary; and in all those powers extending over the whole nation.” No person, said Wilson, and no State, could claim exemption from the jurisdiction of the national government. And as for the action brought by Farquhar’s executors? The action was validly filed.

It was a 4-1 decision by the Court, with Iredell dissenting. The Court ordered the plaintiff’s suit to be served on the Governor of Georgia, and commanded the State to appear or suffer judgment in default. From argument to opinion, the whole thing had taken but fourteen days.

A sense of profound shock swept the country. Massachusetts adopted a resolution denouncing the court’s opinion. Virginia’s Assembly declared:

“That a State cannot under the Constitution of the United States, be made a defendant at the suit of any individual or individuals, and that the decision of the supreme Federal court, that a State may be placed in that situation, is incompatible with, and dangerous to the sovereignty and independence of the individual States, as the same tends to a general consolidation of these confederated republics.”

The outrage in Georgia can be well imagined. Wilson’s opinion had come down in mid-February; the Georgia Legislature did not convene until the following November, but nine months provided no cooling-off period. Governor Edward Telfair advised the Legislature that he had refused to make an appearance, despite a process served upon him, because “this would have introduced a precedent replete with danger to the Republic (of Georgia), and would have involved this State in complicated difficulties abstracted from the infractions it would have made on her retained sovereignty.”(8)

On November 21, the Georgia House of Representatives passed a bill providing that any Federal marshal who attempted to levy upon the property of Georgia in executing the court’s order “shall be . . . guilty of felony, and shall suffer death, without the benefit of clergy, by being hanged.”(9)

Let us take careful note of what happened next. The Court had said one thing—that it had power to hear this suit against Georgia. And Georgia, interposing, had said another thing—that the Court had no such authority. How was this question of contested power to be resolved? Who was right, Georgia or the Court?