Irreconcilable Founders: Spencer Roane, John Marshall, and the Nature of America’s Constitutional Republic, by David Johnson (Louisiana State University Press, 2021), 256 pages.
The temptation to engage in the “everlasting if” may be a particularly Southern trait, if only because of too many lost battles. There are clearly points in history where choices matter, results become determined, and consequences echo through the ages. Winners take on an air of certainty and losers are reviled or benignly forgotten. How different a nation this might have been had John Adams not made the lame duck appointment of John Marshall, and Thomas Jefferson instead had the opportunity to appoint a Spencer Roane as Chief Justice of the U.S. Supreme Court.
Spencer Roane was a judge of the Supreme Court of Appeals—Virginia’s high court—during most of Marshall’s tenure on the U.S. Supreme Court. Roane viewed the Constitution as a compact between sovereign states, contrary to Marshall’s Constitution as a collective agreement by a nation’s people. David Johnson restores the liveliness of debate over the nature of the Constitution with Roane as worthy adversary to Marshall. Roane’s importance lies in advocating the vitality of state’s rights before being reduced to the last redoubt of the South’s peculiar institution.
Having been relegated to the wrong side of history, Johnson notes that Roane “appears in all studies of Marshall only as an annoying gadfly.” Roane and Marshall eloquently aired their differences through court opinions and in the newspapers, with Roane defending strong and independent state judiciaries as a bulwark of liberty. And alluding to Roane’s importance in his time, Johnson writes that to Virginians he was viewed as “the state’s most powerful politician, and the intellectual equal of Jefferson and Madison.”
Unlike Marshall (1755-1835), Roane (1762-1822) was too young to fight in the Revolution. Their early paths crossed regularly as both attended William & Mary, studied law under George Wythe, and served together in the House of Delegates. Roane succeeded Marshall on the Council of State—the executive committee of Virginia’s government—in 1784. This brought him into contact with Governor Patrick Henry and resulted in his marriage to Henry’s daughter, Anne. Roane was appointed to the Virginia bench in 1789, beginning the judicial career that he pursued to his death.
The Constitutional Convention of 1787 in Philadelphia was as much conspiracy as it was miracle. The proponents had no intention of revising Articles of Confederation, but rather to reorder our political system. Often overlooked is Section II of the Articles where “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” The convention met in secret to delay the resistance that was certain to follow.
Unanimity did not break out. Virginians George Mason and Edmund Randolph were two of the three delegates who refused to sign the completed Constitution. While ten states needed to ratify, it was well recognized that a more perfect union without Virginia, with borders then extending to the Mississippi, was doomed to failure. The federalists recognized that quick ratification was necessary before the opposition coalesced. Virginia’s Ratification Convention was held in Richmond during June of 1788.
The proponents in Virginia were led by James Madison and Edmund Randolph—Randolph having switched sides—with Patrick Henry and George Mason directing the opposition. Marshall and his future colleague on the Supreme Court, Bushrod Washington, were in attendance as delegates. Roane, then a state senator, reported on the proceedings of the Convention, where his father-in-law dominated the debate. Henry, as described by historian Forest McDonald, engaged in “the most dazzling performance of his life….a legendary swordsman of the people, single-handedly fending off an entire royal guard.”
To alleviate the concerns of his fellow Virginians, Madison stated that “The powers of the General Government relate to external objects, and are but few.” Henry would have none of it, saying that “This Government will operate like an ambuscade. It will destroy the State Governments, and swallow the liberties of the people.” Mason feared a consolidated government and the absence of a Declaration of Rights, begging the Convention to delay ratification “for such amendments, and such only, as are necessary to secure the dearest rights of the people.”
Madison was able to skillfully deflect most of the objections made by Henry and Mason. When Madison correctly ascertained that the absence of a Bill of Rights would delay or defeat ratification, he promised the Convention that he would introduce such a bill in the first Congress based on Mason’s Virginia Declaration. The Constitution was conditionally ratified with assent on behalf of the People of Virginia qualified that “powers granted under the Constitution…may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.”
Ratification did not harmonize the conflicting views of the Constitution. In Chisholm v. Georgia (1793), the Supreme Court upheld a judgment in favor of a citizen of South Carolina against the State of Georgia. Finding that sovereignty resided in the people of the United States, the Court declared that “Georgia is NOT a sovereign state.” The decision immediately stirred fears of consolidation, resulting in the passage of the 11th Amendment in 1795. The amendment withdrew judicial power of the United States from suits by citizens against states and, with the 10th Amendment, was thought sufficient to confirm sovereign immunity of the states.
The collision of Roane and Marshall was set in the election of 1800. Jefferson defeated Adams for the presidency, and the Democratic Republicans swept the Federalist majority out of the house and, ultimately, the senate. The lame duck appointment of Marshall as chief justice deprived Jefferson of the opportunity to fill the position. In an early court packing scheme, the Federalists also used their interregnum to expand and stack the federal bench with their judges. Marshall then took it upon himself to accomplish from the bench what had been thwarted by popular elections.
Roane, by 1803, was the senior jurist in the oldest state in the nation. The Commonwealth of Virginia, unlike the federal government, enjoyed the ancient traditions of the common law. The number and substance of cases decided before the supreme Court of Appeals made the pre-Marshall Supreme Court a comparative judicial backwater. Roane’s was the superior court—both in time and subject matter—and he viewed Marshall’s court as one of discreet jurisdiction limited to federal matters.
The unresolved conflict was fully joined in a series of cases involving Virginia’s Northern Neck. At the Revolution, the Northern Neck was essentially a proprietary fiefdom of Thomas, Lord Fairfax. Encompassing all of the land between the Potomac and Rappahannock rivers to the Blue Ridge Mountains, it contained the homes and birthplaces of Washington, Madison, Monroe, Lee, Mason, and Marshall. Throughout the colonial period, Virginians had sought greater title to their properties, to include purchase by the legislature.
Marshall had long standing and substantial financial interests in the Northern Neck. During the Ratification debates George Mason had raised the issue of foreigners using federal courts to assert titles to property, stating that “It will annihilate your State judiciary.” Responding to Mason, Marshall countered that “If he [Lord Fairfax] has this right and comes to Virginia, what laws will his claims be determined by? By those of this state. By what tribunals will they be determined? By our State Courts.” Roane fully subscribed to this statement long after Marshall had disavowed it.
After the Revolution, the Virginia legislature determined to sell part of the property of Lord Fairfax, who died without direct heirs. This sale was challenged on the basis of the Treaty of Paris. Roane, in upholding the Virginia act, wrote that the “Treaty of peace applies not to this case, nor to arrest the operation of the laws of alienage in the several states.” He articulated the seemingly unremarkable proposition that the federal government, and certainly a foreign nation, had no business in the land law of a sovereign state. He echoed Madison’s comment that the federal government under the Constitution would not affect local matters.
While Marshall recused himself, he “concurred in every word” of Joseph Story’s opinion in Martin v. Hunter’s Lessee (1816). The Marshall Court opined that the Constitution “was ordained and established not by the states in their sovereign capacities” but by the people. At issue was Section 25 of the Judiciary Act of 1789, which granted the Supreme Court authority to review state court decisions involving federal law and treaties. Roane’s Virginia Court had already decided Section 25 to be unconstitutional, writing that “jurisdiction granted to a government is confined to the courts of that government.”
Article VI of the Constitution made federal law supreme with the express provision that “the judges in every state shall be bound thereby.” Article III established the jurisdiction of federal courts without reference to either binding state judges, or extending appellate power over sovereign state courts. The omitted language in Article III lead Roane to conclude the “supreme court is but a department of the general government” and, absent an express provision in the Constitution, his Virginia Court was just as competent as Marshall’s to decide the constitutionality of Section 25 of the Judiciary Act.
Roane continued his argument over the nature of the national government. The Constitution was submitted to the states and having been ratified by the several states, it was the states that were parties to the compact.
Our government is a federal and not a consolidated government….The Constitution of the United States was not adopted by the people of the United State as one people. It was adopted by the several states, in their highest sovereign character, that is, by the people of the said states, respectively; such people being competent, and they only competent, to alter the preexisting governments operating in the said states.
Not only was the Constitution adopted by the states but, critical to Roane’s analysis and the absurdity of Marshall’s, it could only be amended by state action.
Marshall used Cohens v. Virginia (1821), challenging a law which prohibited the sale of national lottery tickets in Virginia, to once again establish federal supremacy. He asserted the Constitution as a collective agreement and “the authoritative language of the American people.” Roane countered and noted that Marshall’s decision could be explained only by “that love of power, which all history informs us infects and corrupts all who possess it, and from which even the high and ermined judges, themselves, are not exempted.” Thomas Jefferson noted that Roane’s arguments “appeared to me to pulverize every word which had been delivered by Judge Marshall” in Cohen, and that Marshall’s doctrine was “completely refuted by Roane.”
Roane was not sanguine about the prospects for liberty. He wrote of the men he knew well: “If Mason or Henry could lift their patriot heads from the grave, while they mourned the complete fulfillment of their prophecies!” Reigning in a consolidated government would be impossible without strong states. “The people of this vast country, when their state legislatures are put aside…they cannot make any effectual head against invasion of their rights. The triumph over our liberties will be consequently easy and complete.”
The Constitution contained nothing on the relationship of federal and state judiciaries, and was silent on the Supreme Court as the ultimate arbiter of state law. Roane, according to Johnson, “viewed himself as one who has sworn eternal hostility to all forms of tyranny and acted accordingly.” He considered independent and co-equal state judiciaries, asserting those rights reserved to the states, to be essential to liberty. He held the true sovereignty of the people was in their character as citizens of the several states, and not as individuals in a consolidated government.
Patrick Henry had opened the Ratification debates in 1788 with the proposition that “You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your Government.” Marshall’s legacy is the subordination of state courts to the federal, contributing to making states mere political subdivisions of the national government, and laying the foundation for centralized power. The result is our large, unresponsive and consolidated government—as predicted by Henry, Mason and Roane—purchased at the expense of our liberty.
Thomas M. Moncure, Jr. is a Virginia lawyer and former Virginia delegate, who recently retired from his position as university counsel for George Mason University.
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