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?

[Originalist]

The issue went to the States themselves. On February 19, 1793, the day after the Court’s opinion came down, a resolution was offered in Congress proposing an amendment to the Constitution. In January of 1794, this resolution was put in final form and in March it was submitted to the States. New Jersey and Pennsylvania, in effect, voted for the Court: they refused to ratify. But New York, Rhode Island, Connecticut, Massachusetts, New Hampshire, Vermont (which had joined the Union in March of 1791), Virginia, Kentucky, Maryland, Delaware, North Carolina—and of course, Georgia—held that the Court was wrong. They ratified what is now the Eleventh Amendment. They declared that:

“The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign state.”

The necessary number of ratifications could be counted by February of 1795, but the amendment was not formally proclaimed a part of the Constitution until 1798. What is important to note, in this regard, is that Georgia totally defied the Court from the very inception of the suit in 1792. Georgia defied the Court, and Georgia remained in the Union. There was no violence, no secession, no anarchy. There was simply a question of contested power, submitted to the States for decision. And when they had decided it, that was the end of it. The Court in 1798 struck the Chisholm case from its calendar, and with it went all other suits against States commenced prior to the effective date of the Eleventh Amendment.(10)


3. Debt Assumption:

NOW, Georgia's drastic action in the Chisholm case was not the only instance of State interposition in the first half-dozen years of the republic; it was only the most spectacular, and the most decisive. It is the best place to begin.

Actually, however, the controversy over suits against a State was antedated by a warm dispute over Federal resumption of debts incurred by the individual States during the Revolutionary War. In Virginia, the people “by persevering and strenuous exertions” had redeemed a considerable portion of their debts through the collection of heavy taxes imposed by the Virginia Assembly. They could look forward to “the most certain prospect of extinguishing the whole at a period not very distant,” and they were entirely unwilling to tax themselves further for the payment of debts contracted by other States “which either have not paid any part thereof themselves, or have reduced them but in a small proportion compared with the payments made by this State.” When Congress approved an act providing for assumption of all State debts, Virginia vigorously objected; and her resolutions of November 3 and 4, 1790, provide what are perhaps the earliest instances of State protest against Federal action. The first of these resolved…..

“That so much of the act intitled ‘An act making provision for the debt of the United States,’ as assumes the payment of the State debts is repugnant to the Constitution of the United States, as it goes to the exercise of a power not granted to the general government.”
The second, on the following day, declared that the debt assumption act….“..is dangerous to the rights and subversive of the interest of the people, and demands the marked disapprobation of the General Assembly.”

Again, on December 16, 1790, the Virginia Assembly continued its objections against an act that was warranted by “neither policy, justice, nor the Constitution.” The assumption act gave preference to holders of the principal of the continental debt, over the holders of the principal of the State debts, which seemed to the Virginia Assembly unfair and discriminatory. But the Assembly then turned away “from the impolicy and injustice of the act,” in order to view the law in another light “in which . . . it appears still more odious and deformed...

“During the whole discussion of the Federal Constitution by the convention of Virginia, your memorialists were taught to believe ‘that every power not granted, was retained.’ Under this impression and upon this positive condition, declared in the instrument of ratification, the said government was adopted by the people of this Commonwealth; but your memorialists can find no clause in the Constitution, authorizing Congress to assume the debts of the States! As the guardians then of the rights and interests of their constituents, as sentinels placed by them over the ministers of the Federal Government, to shield it from their encroachments, or at least to sound the alarm when it is threatened with invasion, they can never reconcile it to their consciences, silently to acquiesce in a measure which violates that hallowed maxim: A maxim on the truth and sacredness of which the Federal Government depended for its adoption in this Commonwealth.”(11)

May it be suggested, in passing, that the high duty of State legislators, thus defined by Virginia in 1790, merits revival in our own time? The members of State legislatures could perform a service of immense value by serving today “as sentinels placed by [their constituents] over the ministers of the Federal Government,” to shield the people’s freedom from Federal encroachments “or at least to sound the alarm when it is threatened with invasion.” It is a pity to reflect that this obligation of State legislatures, as conceived by the Virginia Assemblymen of 1790, has been so neglected. Our sentinels have slept; and the few alarms they have sounded in recent years have come too late.

Two other instances of State interposition in this period may be noted.

One occurred late in 1790, in North Carolina, when a Federal circuit court attempted, by writ of certiorari, to transfer a case to its jurisdiction from the Supreme Court of North Carolina. The State judges, said Nathaniel Macon later, simply refused to obey the Federal command, and the marshal found himself unable to execute the order. North Carolina’s General Assembly warmly approved the State judges’ resistance.(12)

A second chapter of interposition against Federal courts was written in New Hampshire in 1793 and 1794. Here the grievance dated from the capture of the brig Susannah by the privateer McClary in October of 1777. The McClary was owned and manned by citizens of New Hampshire, but was acting under a commission of the Continental Congress. New Hampshire’s courts condemned the Susannah as a lawful prize, and in the view of New Hampshire, that ended the matter: No appeal was permitted, by State laws, to the Congress. However, objectors did appeal, and in September, 1783, the newly created Court of Appeals in Cases of Capture undertook to reverse the Supreme Court of New Hampshire. But New Hampshire paid no attention to this edict, and there the matter rested until the new Union was formed in 1788, and the new Federal courts came into being.

Then, to the amazement and chagrin of the people of New Hampshire, the principal petitioner, Elisha Doane, successfully revived an action in 1793 which they thought had been disposed of in 1778—before there had been Articles of Confederation, let alone a Constitution for the United States. On February 20, 1794, the New Hampshire Legislature warmly protested that the action was “unsettling all the proceedings of the State governments prior to the existence of the Constitution; and will inevitably involve the States, and this State in particular, in confusion, and will weaken, if not perhaps destroy, the National Government.”(13)

When this accomplished nothing, the New Hampshire Legislature, in January, 1795, for a second time remonstrated “against a violation of State independence and an unwarrantable encroachment in the courts of the United States.”(14)...

“Can the rage for annihilating all the power of the States, and reducing this extensive and flourishing country to one domination, make the administrators blind to the danger of violating all the principles of our former Government?” asked the Legislature.

For their part, the New Hampshiremen well remembered tyranny; they were aware of the meaning of the Confederation; they would remind Congress that under that Confederation, State powers not expressly delegated were reserved. What New Hampshire had done prior to formation of the Union was wholly the business of New Hampshire: Her legislature would not submit laws made before the Constitution “to the adjudication of any power on earth, while the freedom of the Federal government shall afford any constitutional means of redress.”

The declaration was in vain. A month later, the Supreme Court handed down a decision upholding the power of the new Federal courts to carry into effect decrees of the old Prize Court.(15)

It was a bitter dose for the States to swallow. The new Union was scarcely six years old. Yet already a pattern was taking shape along the lines that Patrick Henry had feared and Pendleton, Marshall, Madison, and Hamilton had discounted. In the debt assumption act, Congress had taken an action deemed unconstitutional by Virginia. Federal courts in two States had attempted to arrogate powers unto themselves in orders angrily resented by the States themselves. Worse still, the Supreme Court of the United States had acted in the Chisholm case in a manner so palpably unconstitutional that the States had been compelled to amend their fundamental law to preserve their sovereign power.

All this was part of the background that figured in events of 1798 and 1799, when the right of the States to interpose against Federal encroachment took eloquent and emphatic form.