John Marshall and Spencer Roane: An Historical Analysis of their Conflict over U. S. Supreme Court Appellate Jurisdiction

Samuel R. Olken

Between 1810 and 1821 Chief Justice John Marshall of the United States Supreme Court participated in a series of fierce debates with Spencer Roane, Chief Justice of the Virginia Supreme Court of Appeals. Essentially, theirs was a conflict over the authority of the United States Supreme Court to review the actions of state courts and legislatures. In Cohens v. Virginia[1] the controversy reached its crescendo.

As a leading proponent of a strong national government, John Marshall believed in a powerful federal judiciary with the United States Supreme Court as the final arbiter in disputes involving questions of federal and constitutional law. Spencer Roane favored a relatively weak national government and argued the United States Supreme Court did not have the authority to review the decisions of state courts in matters involving federal or constitutional issues.

Many historians have analyzed their conflict as a personal one and have portrayed Roane as a bitter, frustrated Republican aspirant to the United States Supreme Court. When John Adams replaced Oliver Ellsworth with the Federalist Marshall in December 1800, this purportedly precluded Roane's appointment when Jefferson became President the following March.[2]

For several reasons, however, Jefferson would not have made Roane Chief Justice. Despite the latter's prestige, he remained a junior member of the Virginia Supreme Court in 1801. Jefferson barely knew Roane; the two did not become close friends until 1815. Finally, Roane's intimate association with Patrick Henry, a past political foe of Jefferson, probably prevented the appointment.[3]

This paper examines the development of the Marshall-Roane conflict over Supreme Court appellate jurisdiction. It suggests two reasons why their bitter dispute over the Cohens decision did not occur spontaneously. First, by 1821 these jurists had formed divergent conceptions of federal judicial power. Marshall's points represented the refinement of constitutional views he initially presented in his defense of the federal judiciary during debates with Roane's mentor, Patrick Henry, and George Mason in the Virginia Ratifying Convention of 1788.

In contrast, Spencer Roane's continual immersion in Virginia politics and law for forty years explains his belief in a federal judiciary with limited constitutional authority. Roane viewed his judicial post as a means of preserving the power of his court to decide matters of federal and constitutional law.[4] In addition, the Cohens decision marked the final piece in a trilogy of cases involving Supreme Court appellate jurisdiction. In Martin v. Hunter's Lessee[5] and McCulloch v. Maryland[6] the Marshall Court addressed this issue in broad constitutional and legal terms, but in Cohens the Chief Justice delivered an exhaustive analysis of federal judicial power that elaborated on principles presented in the earlier cases. Moreover, Marshall's opinion responded directly to the criticisms levied against his Court by Spencer Roane and other Republican Virginia jurists from 1810 to 1821. Inasmuch as this essay traces the contours of this debate, it suggests the political and judicial positions of each man affected his understanding of the relationship between Virginia and the federal government.

The first part examines the arguments over the federal judiciary in the Virginia Ratifying Convention of 1788. The second discusses the political and legal influences upon each jurist's developing notions of federal judicial power until 1810. For purposes of this study the term federal courts also signifies the United States Supreme Court. The final section analyzes the extent of their conflict over Supreme Court appellate jurisdiction between 1810 and 1821.

In the summer of 1788 Virginia held a ratifying convention in which delegates from throughout the state debated the merits of adopting the Constitution. From the conclusion of the Revolution to 1787 a loose confederation of states existed, at the head of which was a weak government unable to regulate commerce among the states, raise taxes and to construct an adequate national defense. Its relative powerlessness emanated from the reluctance of individual states to delegate authority to a central government more powerful than their own.

In 1787 representatives from all the states met in Philadelphia to discuss amending the Articles of Confederation. The Philadelphia convention did not, however, merely amend the Articles of Confederation. Under the leadership of Virginia's James Madison, the delegates created a federal system in which the national government would derive its authority from the provisions of a written constitution, and this government would have supreme authority in conflicts of power between individual states and the nation.

John Marshall, a veteran of the Revolutionary War and an attorney in Richmond, attended the Virginia Convention as a representative from Fauquier County. Although Spencer Roane did not participate in the meeting, his political mentor, Patrick Henry, did attend the convention. Throughout the 1780s and into the 1790s Roane enjoyed a close political and personal relationship with Henry, who greatly influenced the young attorney's political views.[7]

While a member of the Virginia legislature representing the interests of aristocratic Tidewater planters, Roane became acquainted with the elder statesman of Virginia politics. In 1784, Roane gained election to Governor Patrick Henry's Privy Council and advised him on affairs of state.[8] Roane's ties with Henry went beyond politics, though, as he married Henry's daughter, Anne, in September 1786.

At the Virginia Ratifying Convention Patrick Henry and George Mason emerged as the leading critics of the Constitution. They objected to a system in which the states became subordinate to a strong central government.[9] They disliked the lack of explicit authority in the federal system, and the absence of a bill of rights bothered them.[10] At the core of their criticism lay the fear the proposed national government would abuse its powers and tyrannize the states and reproduce the type of relationship extant between England and her colonies before the Revolution. Both Henry and Mason believed the Articles of Confederation superior to the Constitution because it allowed states to maintain their sovereign powers through a loose confederation in which the bulk of governmental authority resided within the states.

In particular, they found the Constitution's provisions for a federal judiciary alarming. From the standpoint of this essay it is important to discuss their views because their criticisms foreshadowed those of Spencer Roane several years later. Similarly, Marshall's defense of federal judicial power contained constitutional views he would express more explicitly during his conflict with Roane.

Henry and Mason believed the Constitution's provisions for a federal judiciary meant the destruction of state courts. Henry disliked the idea of state court judges swearing to uphold the Constitution because he feared they would then automatically decide in favor of the federal government in conflicts between a state and the federal government.[11] Henry and Mason also interpreted Article III as a direct attempt to weaken state courts because it enabled the federal judiciary to exercise appellate jurisdiction in state court cases involving issues arising under Constitutional and federal law.[12] Mason thought more power should belong to the state courts and disputed the authority of federal courts to decide disputes between citizens of different states. He felt, as did Henry, the Constitution unfairly questioned the competence of state courts to hear these types of cases.[13]

In response, John Marshall made a stirring speech in defense of the proposed federal judiciary. He stressed the importance of having the federal judiciary function as prime guardian of constitutional rights and asked: "To what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the [federal] judiciary?"[14] He also understood federal courts would play a critical role in preserving the delicate balance of power implicit in the federal system.

Unlike Henry and Mason (and much later Spencer Roane), Marshall believed in the value of a strong central government. As an attorney and former member of a legislative committee that reviewed Virginia courts,[15] Marshall may have harbored some concerns about the ability of state tribunals to decide issues of national interest in a consistent and fair manner. Moreover, his military experiences in the Revolution revealed to him the importance of a strong central government in matters of national welfare.[16]

He favored having the federal judiciary issue binding interpretations of the laws of the United States and the Constitution because he considered it more likely to base its decisions on the good of the nation rather than on the interests of a particular state. He emphasized this concern in refuting Henry's objection to the exercise of federal judicial power in disputes between citizens of one state and another state or between two states. Henry thought this provision appalling because he considered states as sovereign powers incapable of becoming defendants in law suits.[17]

Uninhibited by adherence to the notion of state sovereignty, Marshall preferred to view the problem from the perspective of a citizen and asked:

Marshall thought a federal judiciary would curb "disputes between the states" because federal courts would serve as impartial umpires in these types of cases.[19] He also assured Henry, states would not always become defendants in cases before the federal courts.[20]

Marshall' s speech anticipated his debate over federal court appellate jurisdiction with Henry's protege, Spencer Roane. Like Henry and Mason, Roane felt uneasy about the Constitution's failure to provide explicit distinctions between the powers of the federal and state governments.[21] Quite possibly, Roane's implicit trust of Virginia government prevented him from trusting the concentration of power in a government beyond the direct control of the states.

Throughout his early years Tidewater (eastern) planters of considerable wealth and prestige controlled the Virginia colonial assembly, creating an intricate fusion of social prestige and political power in a relatively small group of men, many of whom Roane knew and admired.[22] Abstract concentration power in a central government signified a threat to this network and compelled Spencer Roane's mentor, Patrick Henry, to criticize the Constitution. This also may explain the genesis of Roane's initial hesitance toward the new federal system.[23]

Over the next 22 years John Marshall and Spencer Roane occupied political and judicial positions which enabled them to refine their views on federalism, and, in particular, on federal judicial power. Marshall remained in Richmond until 1797, where he practiced law and became a leading member of the Virginia Federalists.[24] He maintained close ties with national leaders such as Washington, Hamilton and Adams and participated in complex diplomatic negotiations with the wily French foreign minister, Talleyrand, in the XYZ affair. At the behest of George Washington, Marshall ran for Congress in 1798,[25] and during his successful campaign helped craft a constitutional defense of the Alien and Sedition Acts.[26]

Enacted by the Federalists in response to intense Republican criticism of the Adams Administration, the measures extended the naturalization period for foreigners and made criminal published criticism of either the President or Congress. Republican leaders Thomas Jefferson and James Madison, native Virginians, drafted the Kentucky and Virginia Resolutions,[27] which criticized the acts for exceeding the Constitutional powers of Congress.

Implicit in the Resolutions were two ideas that deemphasized the authority of the national government. First, the states did not relinquish their sovereign powers upon ratifying the Constitution. Second, the states agreed to form only a federal compact and not a consolidated union in which their powers would become subordinate to those of the national government. Consequently, states could declare federal laws such as these acts invalid if they deemed them unconstitutional.[28] Essentially, the Resolutions expressed a more refined version of the views set forth by Patrick Henry and George Mason ten years before. Many Virginians agreed with these sentiments, including a relatively new member of the Virginia bench, Spencer Roane.[29] Notwithstanding these criticisms, John Marshall argued the supremacy of the federal government enabled Congress to use implied constitutional powers on behalf of the general welfare.[30]For Marshall and other Federalists the Acts signified Congressional use of implied constitutional authority. Ultimately, Marshall reaffirmed this view in McCulloch v. Maryland.[31]

John Marshall became Chief Justice of the United States Supreme Court in 1801 and during his initial decade on the Court wrote two majority opinions which revealed his understanding of federal judicial power. In Marbury v. Madison[32] the Marshall Court held unconstitutional Section 13 of the Judiciary Act of 1789, which expanded the Court's original jurisdiction by authorizing it to issue mandamuses upon federal officials.[33] Pursuant to this provision William Marbury, one of the "midnight appointees" who had not received his commission as justice of the peace from the new Secretary of State, Republican James Madison, requested the Court to issue a writ of mandamus to compel Madison's delivery of the commission.

Marshall's decision minimized the underlying political controversy,[34] and made clear the Court's prerogative to review the constitutionality of Congressional acts.[35] Without denying Marbury's right to his commission, Marshall ruled the mandamus provision contravened the implicit distinction between the Court's appellate and original jurisdiction as set forth in Article III of the Constitution.[36] In holding that the Court lacked original jurisdiction to issue the mandamus, Marshall emphasized principles of constitutional supremacy and judicial review.[37] Though the opinion did not specify whether the Court would declare state acts unconstitutional if they conflicted with the Constitution, Marshall implied this.

In Fletcher v. Peck[38] the Supreme Court exercised its appellate jurisdiction and ruled a 1795 Georgia law that rescinded a prior statutory land grant impaired a contractual obligation in violation of the contract clause of the Constitution.[39] Marshall imbued his opinion with principles of federal and constitutional supremacy and reasoned that Georgia was not "a single, unconnected, sovereign power, on whose legislature no other restrictions [were] imposed than may be found in its own constitution."[40]

Justice William Johnson, a South Carolina Republican appointed to the Court by Jefferson in 1805, wrote a concurrence in which he agreed with Marshall's views on jurisdiction. Indeed, when he said: "the right of jurisdiction is essentially connected to, or rather identified with, the national sovereignty,"[41] he stressed a predominant theme in Marshall's jurisprudence and the fundamental premise of the impending conflict between the Chief Justice and Spencer Roane.

While John Marshall became increasingly identified with the national government after 1788, Spencer Roane followed a different course. He served on the Virginia General Court for six years and became a leading proponent of the right of Virginia courts to review state legislative acts. For example, in Kamper v. Hawkins Roane invalidated a state law that enabled a district court to issue injunctions because the provision violated the Virginia constitution.[42]

Inasmuch as Roane favored a powerful state judiciary, by 1798 he also demonstrated distaste for the concept of federal supremacy implicit in Marshall's constitutional defense of the Federalist measures. Roane, like many other Virginia Republicans, endorsed the Kentucky and Virginia Resolutions' recognition of state sovereignty and supported Edmund Randoph's formal opposition to the Alien and Sedition Acts.[43]

Appointed to the Virginia Supreme Court of Appeals (Virginia Supreme Court) in 1795, Roane aligned himself politically with the Republicans by 1798. In 1802 he established the Richmond Enquirer with his cousin, Thomas Ritchie, to provide Republicans in that city an effective vehicle.[44] Two years later Roane helped create the Richmond Junto, a secret political organization designed to consolidate the Virginia Republicans and to strengthen the party's influence over national affairs.[45]

At first membership was small, but by Roane's death in 1822 it comprised an extensive network in control of Virginia's judiciary, legislature and major financial institutions.[46] The group embodied the political ideas of Roane's Tidewater background; many members came from this region, and several viewed the state government as the prime reservoir of political sovereignty. The Junto helped refine Roane's views and reinforced his ties with Virginia Republicans such as John Taylor of Caroline County, who wrote treatises in opposition to nationalism.[47] The Junto also gave Roane valuable support during his ensuing battles with John Marshall.

The power and prestige of the Junto emanated from the personal and political prestige of its members.[48] By 1804 Spencer Roane enjoyed enormous popularity and exercised considerable influence because of his outstanding reputation as a jurist. His rapid rise through the state judiciary culminated in his elevation to Chief Justice of the state's supreme court in 1803, a post he held until his death in 1822.

The direction in which Roane's political and constitutional ideas developed during his early years as Chief Justice emerged in his concurring opinion in Brown v. Crippen.[49] Crippen and Wise, citizens of Virginia, sued Brown, of Pennsylvania, in a Virginia trial court, but Brown sought direct removal of the dispute to a federal court. Section 12 of the Judiciary Act of 1789 authorized removal of diversity suits.[50] The Virginia Supreme Court ruled Section 12 authorized removal of the case but emphasized that it and not the trial court could issue the removal order.[51]

Roane concurred with the opinion written by Virginia Supreme Court Judge Tucker, which expressed some doubts about removal of the suit to a federal court:

Ultimately, Roane refined this view over the next decade.

Between 1810 and 1821 John Marshall and Spencer Roane became embroiled in a complex, and, at times, personal, dispute over federal court appellate jurisdiction. Although Cohens v. Virginia[53] marked the apogee of their conflict, two other cases formed its parameters: Martin v. Hunter's Lessee[54] and McCulloch v. Maryland.[55] Consequently, these cases form a trilogy from which to assess the development of each jurist's notion of federal judicial power.

Martin v. Hunter's Lessee[56] involved conflicting property rights to the extensive Fairfax estate in northern Virginia. The suit began in 1791 when Hunter sought to eject a Fairfax heir from the land pursuant to Virginia laws that confiscated property of British citizens. The Fairfax heir claimed United States treaties with Great Britain gave him title to the land, and the lower court agreed.[57]

Eventually, the case came before the Virginia Supreme Court, and Spencer Roane wrote the majority opinion. The court held Hunter obtained title under a 1782 state law despite federal treaties that invalidated confiscation of British aliens' property.[58] Fairfax then appealed to the United States Supreme Court under Section 25 of the Judiciary Act of 1789.[59] This provision authorized the Court's review of any case in which a state court ruled against a claim made under federal law, the Constitution or a treaty.[60]

The Court reversed Roane's decision and held the 1782 Virginia statute did not escheat the Fairfax land to the state, nor did the treaties allow the state to grant Hunter the property.[61] The Court remanded the case and ordered Roane's tribunal to give Fairfax title. John Marshall did not participate in the decision because he had represented some Fairfax heirs in a Virginia dispute, and he purchased a portion of the estate in the late 1790s. Instead, Joseph Story wrote the Court's opinion.[62]

Roane refused to follow Story's orders and in Hunter v. Martin[63] launched his initial attack on the power of the United States Supreme Court to review state court decisions. Roane specifically objected to Supreme Court review of cases that originated in state courts.[64] He perceived Section 25 of the Judiciary Act of 1789 diminished the importance of state court decisions on constitutional and federal matters because it permitted litigants to appeal adverse state judgments to the United States Supreme Court.

In part, Roane's concern emanated from his confused conception of jurisdiction:

He did not question either the authority or the competence of his court to make a final judgment in the Fairfax dispute.

Roane focused on the initial location of the suit and failed to consider that its subject matter--rights claimed under federal treaties--raised issues with legal and political consequences beyond Virginia's borders. However, questions of jurisdiction involve judicial authority, and this power derives from either the types of parties involved or the underlying subject matter.

Moreover, in questioning the propriety of Supreme Court review, Roane expressed concerns about federalism first voiced in the Virginia constitutional convention by Patrick Henry and George Mason and reiterated during the Alien and Sedition Acts imbroglio. For these early critics of federalism, the subordination of individual state governments to a national body whose powers emanated from a constitution and with plenary authority in matters affecting all citizens threatened individual states' autonomy.

Perhaps Spencer Roane inherently trusted the states to preserve men's fundamental rights and hesitated in relinquishing this authority to sources beyond the state. As a jurist who had spent all but one year in Virginia, Roane became more solicitous about state sovereignty than John Marshall, and even Jefferson and Madison, all of whom received extensive direct exposure to national affairs. Jefferson and Madison may have helped craft the compact theory Roane endorsed, and, yet unlike him, by 1816 they were less doctrinaire in its application.

For example, Roane's opinions manifest his fundamental conception of the relationship between the state and federal governments:

From this perspective Roane viewed his court and Story's as parts of two distinct governments. Story's reversal of his decision signified an abhorrent attempt to erase the distinction and meant the federal government would "ingulph and sweep away, every vestige of the state" governments.[67] Finally, Roane's opinion marked his refusal to accept the United States Supreme Court's supremacy in the interpretation of constitutional and federal issues.

Subsequent to Roane's decision, Fairfax filed another appeal to the United States Supreme Court. Joseph Story wrote the Court's opinion in Martin v. Hunter's Lessee,[68] Marshall again having recused himself. Though Story and not Marshall wrote the opinion, Story expressed the Chief Justice's views. In a subsequent letter Story wrote to Charles Ticknor, he implied Marshall exerted considerable influence over the decision.[69] Quite possibly, they worked on the opinion together.[70]

Story reversed Roane's decision and upheld the Court's power to review the Virginia ruling pursuant to Section 25 of the Judiciary Act. Story argued that the judicial power of the United States is exclusive even when the federal issues arise incidentally in state courts.[71] Moreover, "the judicial power of the United States is.. .exclusive of all state authority."[72] Story perceived the problem of Roane's jurisdiction test and suggested "it is the case... and not the court, that gives the jurisdiction."[73]

The decision of the United States Supreme Court did not finish the squabbles between the Virginia court and its federal counterpart. The case made clear the Marshall Court's association with the ascendant wave of nationalism that characterized the policies of the federal government.[74] In contrast, Spencer Roane's emergence as an outspoken advocate of state judicial authority spawned from a growing awareness among many leading Virginia Republicans of their waning political prestige and influence in national affairs.[75]

Between 1816 and 1821, Tidewater Republicans like Roane, who came from eastern Virginia, chafed at President Monroe's ambitious national internal improvements program because it meant increased taxes and significant federal intervention during a period of sharp agricultural and economic decline in their part of the state.[76] Junto members viewed the federal plan as a direct threat to the state's economic prosperity, and the Martin decision confirmed their political fears. The extent to which these political, economic and constitutional concerns proliferated their views became manifest in the controversy over McCulloch v. Maryland.[77]

In McCulloch v. Maryland[78] the United States Supreme Court held unconstitutional a Maryland tax on notes issued from the Baltimore branch of the United States Bank. Before the Court were two questions: the constitutionality of the federal bank and the authority of Maryland to tax its operations within the state. Although the dispute did not directly raise problems of federal Court jurisdiction, Marshall's opinion and subsequent correspondence revealed his perception of the Court's role in the federal system.

Marshall ruled the necessary and proper clause of the Constitution implicitly authorized Congress to create the Bank.[79] He considered the Bank essential in the establishment of a strong national government able to preside effectively over the country's commercial and economic interests. Perhaps his support came from his knowledge of the Continental Congress's inability to adequately fund the Revolution. As a member of Washington's army he learned the importance of a depository for national revenue.[80] No such bank existed during the Revolution, and consequently the army lacked sufficient economic support.

Moreover, the Chief Justice perceived the dispute as a conflict between Maryland and the federal government and emphasized the latter's supremacy in matters of national interest. To this extent he analyzed the different sources of governmental authority in this problem. He defined, as did Roane, this authority as sovereignty. Marshall believed the United States government possessed the authority, or sovereignty, to create a federal bank.[81] He did not think Maryland had the right to tax the federal bank because the tax exceeded the scope of her sovereignty.[82] He viewed the tax as "usurpation of a power which the people of a single state cannot give."[83] For this reason Marshall considered the tax as a deliberate attempt to subordinate the federal government to Maryland.

Maryland justified the levy as an exercise of sovereignty and argued the sovereignty of the American people remained with the states and did not pass to the federal government upon ratification of the Constitution.[84] Maryland saw herself as a sovereign power independent of the federal government, free to enact laws applicable within her borders regardless of their effects upon the nation.

In response, Marshall noted the United States government derived its authority directly from the American people and not from individual states.[85] Ethical and personal considerations prevented him from addressing similar arguments in Martin v. Hunter's Lessee;[86] in this dispute he used the Bank controversy to refute notions of state sovereignty that he believed threatened the federal system.

Marshall's opinion did not pass without criticism from Spencer Roane and other Junto members in Virginia. In the Richmond Enquirer Judge William Brockenbrough, using the pseudonym "Amphictyon," reiterated the compact theory Roane expressed in his Hunter opinion.[87] He observed "the respective states then in their sovereign capacity did delegate to the federal government its powers, and in so doing were parties to the compact.[88]

Like Roane, Brockenbrough derived this idea from the Kentucky and Virginia Resolutions and from Madison's 1799 Committee Report to the Virginia House of Delegates. Although Madison later claimed his definitions of state sovereignty were ambiguous and only designed to incite criticism of the Federalists,[89] both Roane and Brockenbrough chose to quote him at length when they invoked the principles of state rights.[90]

John Marshall read the published "Amphictyon" essays at his Richmond home. He realized their dangerous implications and arranged to publish his response in the Philadelphia Union. In late April, his essays appeared under the pen name of "A Friend to the Union."[91] Throughout them ran this theme: the unanswered arguments of "Amphictyon" would ultimately subvert the federal system, and the national union would be replaced by a loose league of states, similar to that extant under the Articles of Confederation.[92] The essays reiterated his opinion in the Bank cases and emphasized the federal government's authority to charter the Bank under implied constitutional provisions.

Ultimately, Marshall's fear and anger compelled his publication of additional articles,[93] but not before Spencer Roane wrote the "Hampden" essays. Although not directly involved in the Bank case, he immediately interpreted Marshall's opinion as another threat to state sovereignty and published his views in the Richmond Enquirer during the late spring of 1819. He thought Marshall's constitutional interpretation was too liberal in its assessment of the federal government's powers under the necessary and proper clause.[94] He believed this clause only provided precautionary measures deemed absolutely essential for the nation; he did not sanction its use for expansion of implied federal powers.[95] Roane further argued the Constitution gave the national government only limited, express powers and that the Tenth Amendment preserved the authority of state action in the absence of specific constitutional federal authority.[96]

Roane said Marshall's opinion signified an attempt to create a consolidated union when the states had formed a "federal government, with some features of nationality."[97] He claimed individual states had a "duty to preserve" their own interests that were distinct from those of the nation.[98] He also said state governments were "so important they [could] alter and even abolish the present system."[99] Though Roane never advocated Virginia's secession,[100] he used this language to express the depth of his revulsion toward John Marshall 's concept of federalism.

In his essay of June 22, 1819 Roane specifically criticized the Chief Justice's ideas about national judicial power. He questioned the authority of the United States Supreme Court to decide the McCulloch case and found no explicit constitutional provision for the Court's jurisdiction.[101] Roane viewed the relationship between the states and federal government as a contract, and the Supreme Court's exercise of appellate jurisdiction precluded an impartial resolution of the parties' conflict.

For Roane and other Junto members the Court violated "the principle which forbids a party to decide his own cause."[102] Judge Brockenbrough anticipated this point in his "Amphictyon" essay when he observed: "the supreme court may be a perfectly impartial tribunal to decide between two states, but cannot be considered in that point of view when the contest lies between the United States, and one of its members."[103] Significantly, neither Roane or Brockenbrough doubted the ability of a state Court to make impartial decisions of constitutional law.

John Marshall responded to Roane's objections in nine essays published under the pseudonym "A Friend of the Constitution" in the Alexandria Gazette. His particular sensitivity about criticism of the Court emerged in this observation:

For John Marshall and Spencer Roane more than the immediate outcome of a legal decision mattered. Indeed, each jurist sought to defend his views of federalism and judicial authority.

Marshall believed, as did many other veterans of the Revolution, that a strong nation required a powerful national government whose authority emanated not from the states but rather from the American people. The Chief Justice and the other members of his Court considered the federal judiciary an efficient and reliable means of attaining uniform and consistent interpretation of constitutional and legal questions that affected the national welfare. To this extent he asked:

Undaunted by this reasoning, Spencer Roane and the Richmond Junto sought passage in the Virginia legislature of formal resolutions condemning Marshall's principles of federal judicial supremacy. In February, 1820 the lower house approved the measures, but the subsequent intervention of the Missouri Compromise controversy prevented their formal passage. Instead, the legislators concentrated on issues of slavery and territorial expansion.[106] Still, the conflict over Supreme Court appellate jurisdiction had not completely subsided in Virginia.

By 1821 John Marshall and Spencer Roane had formed divergent conceptions of federal court jurisdiction. The Martin and McCulloch decisions established the parameters of their conflict, but Cohens produced the complete distillation of their views. After McCulloch their conflict became increasingly personal and reflected each jurist's deep concern for preserving his vision of courts in the federal system.

Virginia convicted the Cohen brothers of selling lottery tickets in violation of the state's criminal law. The Cohens appealed directly to the United States Supreme Court under Section 25 of the Judiciary Act of 1789, the same jurisdictional provision involved in the Martin case.[107] They made this appeal because the Virginia law prohibited appeal to the state appellate courts.[108] The brothers claimed Congressional law authorized sale of the tickets to help finance construction of the federal capitol; therefore, a federal question existed in the case.

Philip Barbour, a member of the Richmond Junto and friend of Spencer Roane, represented Virginia and raised three issues before the Court. First, the Court lacked appellate jurisdiction in a dispute between a state and her citizens. Second, the criteria for Supreme Court review depended entirely on the character of the parties regardless of the subject matter. Nor did Barbour think the Cohens' claim that a federal law precluded their conviction constituted a viable issue over which the Court had jurisdiction. Indeed, Barbour claimed the Court did not have authority in conflicts between state criminal laws and federal acts. For this reason he urged the limitation of Martin to civil law disputes.

Finally, Virginia opposed Supreme Court review because of the Eleventh Amendment's limited prohibiton of suits in federal court against a state.[109] Absent the state's consent to suit, a federal court lacked jurisdiction in the matter.[110]

The Supreme Court had faced similar questions about its appellate powers in Martin, and the Bank case indirectly raised these issues; however, neither case entirely resolved the problem. Although Marshall upheld the Co-hens' conviction, his opinion vigorously defended the Court's appellate authority. In essence, the opinion represented the refinement of arguments he made on behalf of the federal judiciary in the Virginia Ratifying Convention of 1788.

He rejected the argument that jurisdiction depended on the character of the parties regardless of subject matter, and he stressed the Constitution extended federal judicial power "to all cases arising under the constitution and laws of the United States."[111] The Court properly exercised appellate review because the case involved a federal question: the Cohens' right to sell lottery tickets pursuant to a federal act.

Barbour's contention that the Virginia law prohibited the Cohens' appeal to the Supreme Court particularly irked Marshall because it signified Virginia's continued refusal to acknowledge the supremacy of federal courts in constitutional and national matters. He thought this restrictive interpretation meant "the course of the government maybe, at anytime, arrested by the will of one of its members.[112]

Marshall had emphasized this theme before in United States v. Peters in which he sternly chastised the Pennsylvania legislature for circumventing a federal court order.[113] Though he had briefly addressed the concept of federal judicial supremacy in McCulloch, his opinion in the Cohens case displayed his inherent distrust of state courts. Further, it more cogently explained the necessity of Supreme Court appellate jurisdiction than did Story's opinion in the Martin controversy.

Marshall analyzed the dispute over appellate review from an historical perspective and remembered the period before the Constitution when the intransigence of individual states threatened economic and legal chaos.[114] To this extent he said:

In fact, he argued that by virtue of their provincial concerns, state courts were unable to interpret correctly the Constitution and federal laws. He feared that if these courts were given the same powers as the United States Supreme Court chaos would ensue. He also expressed doubts about their ability to act fairly in conflicts between states and the federal government.[116] Finally, Marshall also did not accept Virginia's invocation of the Eleventh Amendment. The writ of error did not make the state a defendant; it enabled the court to review the trial record.[117] Further, the amendment did not block the Court's appellate review because the case involved a federal question.[118]

Spencer Roane immediately perceived the implications of the Cohens decision and in the spring of 1821 published a series of articles under the pseudonym "Algernon Sydney" in the Richmond Enquirer. Once again, the Virginia jurist accused the Supreme Court of expanding federal judicial power at the expense of state courts, and he stressed cases originating in the states could not be appealed to federal tribunals.[119]

In part, Roane based these claims on John Taylor's Construction Construed and Constitution Vindicated (1820), a treatise on state sovereignty written in response to the McCulloch decison. Taylor derived much of his analysis from the compact theory he helped articulate in the Virginia and Kentucky Resolutions of 1798.[120]

As in Martin, Roane used the compact theory to explain his opposition toward the Court's broad invocation of appellate review:

Roane also believed the appeal made Virginia a defendant in the suit in contravention of the Eleventh Amendment and concluded "a sovereign state cannot be made a party in the courts of another without its consent."[122]

Roane also invoked the Tenth Amendment in his argument[123] to express the constitutional provision authorizing Supreme Court review of the Cohens case. To this extent he remarked: "If the jurisdiction is not given in this case expressly, or by fair and necessary implication, the power is retained by the states, and the decision of the state courts is, consequently final."[124]

Roane's fears about the impending destruction of state court autonomy echoed the sentiments of Patrick Henry and George Mason in the Virginia Ratifying Convention of 1788, as he accused Marshall of making "unwarranted expositions"[125] of judicial power and warned "all states might be demolished by the supreme court."[126]

Roane had expressed this view in the Martin case and in his "Hampden" essays of 1819, but his new articles appeared more emphatic and personal. Marshall's ideas insulted him because they implied state courts were unable to interpret correctly issues of federal and constitutional law. As a longtime state jurist, Roane was proud of the Virginia courts, and, in particular, of his own skills. He cited his opinion in Kamper v. Hawkins as an example of a state court's ability to act independently from a state legislature and declare a local act unconstitutional.[127] By analogy, he thought if a state court could exercise judicial review of state laws, it could make final decisions on federal and constitutional matters.[128]

However, Roane's logic did not consider the problem of inconsistent constitutional interpretations from different state supreme courts. His immersion in Virginia law and politics limited his ability to perceive constitutional problems from a national perspective. Consequently, he never appreciated the importance of the United States Supreme Court as the ultimate arbiter of constitutional and legal conflicts inherent in the federal system. In contrast, John Marshall's tenure on the Court sharpened his understanding of that tribunal's role in the federal system.

Nevertheless, Roane's harsh criticisms exacerbated the Chief Justice's anxiety about state rights, and he wrote Joseph Story that Roane's essays represented "a deep design to convert our government into a mere league of states."[129] In part, Marshall's concern emanated from his knowledge of the intimate connection between law and politics in Virginia. He confided to Justice Story:

Nor did Marshall limit his anger to letters he wrote Story; the two used their influence to persuade the American Law Journal to suspend its publication of Roane's essays.[131]

During the fall of 1821, Roane encouraged a political ally, John Eppes, to submit to the Virginia House of Delegates a proposal for a new amendment to the Constitution. In fact, Roane himself may have authored the measure, as its three provisions embodied his criticisms of the Supreme Court. First, it urged prohibition of congressional passage of laws under the necessary and proper clause.[132] Second, it did not give federal courts the power to review and revise state court decisions. Finally, it blocked federal court review of any cases in which a state was a party except for disputes where both parties were states.[133]

The Virginia legislature ultimately rejected the proposal. During this time the South became embroiled in the escalating conflict over slavery and territorial expansion, and these issues may have preoccupied the legislators. In addition, the measures never gained the support of elder Republican statesmen such as Thomas Jefferson and James Madison.[134] Madison, for one, believed Roane had gone too far.[135]

Spencer Roane died nearly eight months later, on September 4, 1822. During the remaining thirteen years of John Marshall's tenure, the Supreme Court continued to exercise its power in resolving conflicts between the states and the federal government.[136] That the Court did so relatively free from criticism stemmed in large part from Roane's noteworthy absence. After his death, no other "judicial advocate of states rights" emerged.[137]

The conflict over United States Supreme Court appellate jurisdiction between John Marshall and Spencer Roane did not arise spontaneously, nor did it occur within a legal vacuum. Indeed, Marshall's debates over federal judicial power with Patrick Henry and George Mason in the Virginia Ratifying Convention of 1788 anticipated his subsequent disagreements with Spencer Roane.

Political, and, perhaps to some extent, economic factors help explain the divergent conceptions each jurist developed over the next thirty-three years, as Marshall became Chief Justice of the United States Supreme Court and Roane assumed control of Virginia's highest tribunal. And while their dispute at times involved complex and often abstract principles of law, it also revealed the powerful personalities of two men from Virginia, each of whom used his judicial position to preserve distinct notions of law and government.

1. 19 U.S. (6 Wheat.) 264 (1821).
2. E. Smith, Spencer Roan in 2 The John P. Branch Historical Papers of Randolph-Macon College (W. Dodd, ed. 1905) no. 1 at 14; see Kerr, "If Spencer Roane Had Been Appointed Chief Justice Instead of John Marshall," 20 ABA Journal 167, 169 (1934); see 3 A. Beveridge, The Life of John Marshall 113, 200 (1929).
3. C. Gelbach, "Spencer Roane of Virginia, 1766-1822: A Judicial Advocate of State Rights" 104-05 (Dissertation, Univ. of Pitt. 1955).
4. See generally, Gelbach, supra note 3; see M. Horsnell, "Spencer Roane; Judicial Advocate of Jeffersonian Principles" (Dissertation, Univ. of Minn. 1967).
5. 14 U.S. (1 Wheat.) 304 (1816).
6. 17 U.S. (4 Wheat.) 316 (1819).
7. Horsnell, supra note 4, at 32.
8. Gelbach, supra note 3, at 17.
9. 3 Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 522 (2^nd. Ed. 1836); see Horsnell, supra note 4, at 18.
10. 3 Elliott, supra note 9, at 442, 445-49, 462; see G. Wood, The Creation of the American Republic, 1776-1787 536-43 (1969).
11. 3 Elliot, supra note 9, at 539.
12. Id. at 522, 539-46.
13. Id. at 526-27.
14. Id. at 554.
15. Smith, Spencer Roane in 2 John P. branch Papers, supra note 2, at 6-7.
16. See generally 1 J. Marshall, The Life of George Washington, Commander in Chief of the American Forces, During the War Which Established the Independence of his Country, and first President of the United States (2^nd ed. 1832); see Lerner, "John Marshall and the Campaign of History," 39 Colum. L. Rev. 396, 398-399 (1939); see 1 A. Beveridge, The Life of John Marshall, 69-107 (1916).
17. 3 Elliot, supra note 9, at 542-43.
18. Id. at 556.
19. Id. at 556-57.
20. Id. at 555.
21. Note, "Judge Spencer Roane of Virginia: Champion of States' Rights--Foe of John Marshall," 66 Harv. L. Rev. 1242, 1244 n. 19 (1953); Horsnell, supra note 4, at 18-19; Kerr, supra note 2, at 169.
22. Note, "Judge Spencer Roane of Virginia: Champion of States' Rights--Foe of John Marshall," 66 Harv. L. Rev. 1242, 1244 n. 19 (1953); Horsnell, supra note 4, at 18-19; Kerr, supra note 2, at 169.
23. Gelbach, supra note 3, at 54-55, 124.
24. II Beveridge, supra note 2, at Chs. 3 and 4.
25. J. Marshall, An Autobiographical Sketch 25-26 (J. S. Adams ed. 1937); II Beveridge, supra note 2, at 374-78.
26. L. Baker, John Marshall: A Life in Law 303-07 (1974).
27. 6 The Writings of James Madison 326-31 (G. Hunt ed. 1906) contains the text of the Virginia Resolution.
28. Horsnell, supra note 4, at 44-45; 6 The Writings of James Madison, supra note 27, at 349.
29. See D. Malone, Jefferson and the Ordeal of Liberty 395-405 (1962).
30. J. Marshall, "Address of the Minority" in Journal of the Virginia House of Delegates at 88-90 (December 1798); see G. E. White, The American Judicial Tradition: Profiles of Leading American Judges 19-20 (1976).
31. 17 U.S. (4 Wheat.) 316 (1819).
32. 5 U.S. (1 Cranch) 137 (1803).
33. Judiciary Act of 1789, ch. 20, sec. 13, 1 Stat. 73, 81 (1789).
34. See Haskins, "Law Versus Politics in the Early Years of the Marshall Court," 130 U. Pa. L. Rev. 1 (1981); see Nelson, "The Eighteenth-Century Background of John Marshall's Constitutional Jurisprudence," 76 Mich. L. Rev. 893 (1978); see R. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic 43-45, 58, 64-68 (1971).
35. Bloch and Marcus, "John Marshall's Selective Use of History in Marbury v. Madison," Supreme Court Historical Society Yearbook, 94-95 (1987).
36. 5 U.S. (1 Cranch) at 174-76.
37. Id. at 178.
38. 10 U.S. (6 Cranch) 87 (1810).
39. Id. at 139. U.S. Cost. Art. I, sec. X, cl. 1 says "No state shall enter into any . . . law impairing the obligation of contracts."
40. 10 U.S. (6 Cranch) 87 (1810).
41. 10 U.S. (6 Cranch) at 136.
42. Id. at 143.
43. 1 VA Cases 20, 40-41 (1793); see J. Radabagh, "Spencer Roane and the Genesis of Virginia Judicial Review," 6 Am. J. Legal Hist. 63, 70 (1962).
44. Horsnell, supra note 4, at 52; Kerr, supra note 2, at 169.
45. Beach, "Spencer Roane and the Richmond Junto," 22 Wm. & Mary College Q. Hist. Mag. 1, 1-3 (2d ser., no. 1 1942); 66 Harv. L. Rev., supra note 21, at 1244.
46. 66 Harv. L. Rev., supra note 21, at 1244; Horsnell, supra note 4, at 4; Gelbach, supra note 3, at 54-55, 124.
47. See Malone, supra note 29, at 404-05 for discussion of Taylor's contribution to the Kentucky and Virginia Resolutions; Taylor wrote Construction Construed and Constitution Vindicated (1820); see R. K. Newmyer, The Supreme Court under Marshall and Taney 46-47 (1968).
48. Ammon, "The Richmond Junto, 1800-1824," 61 Va. Mag. of Hist. & Bio. 395, 417 (1953).
49. 4 VA Cases (Henning & Munford) 173 (1809).
50. Judiciary Act of 1789, ch. 20, sec. 12, 1 Stat. 73 (1789).
51. 4 VA Cases (Henning & Munford) at 179.
52. Id.
53. 19 U.S. (6 Wheat.) 264 (1821).
54. 14 U.S. (1 Wheat.) 304 (1816).
55. 17 U.S. (4 Wheat.) 316 (1819).
56. 14 U.S. (1 Wheat.) 304 (1816).
57. Hunter v. Fairfax's Devisee VA Cases (April 24, 1794).
58. Hunter v. Fairfax's Devisee, 15 VA Cases (1 Munford) 218, 228-29 (1810).
59. Dodd, "Chief Justice Marshall and Virginia, 1813-1821," 12 Am. Hist. Rev. 776, 778 (1907).
60. Judiciary Act of 1789, ch. 20, sec. 25, 1 Stat. 73, 85 (1789).
61. Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603, 612-28 (1813).
62. Marshall represented Denny Martin Fairfax in Hite v. Fairfax, 4 Call. 42 (178); see Haines, The Role of the Supreme Court in American Government and Politics, 1789-1835 340-41 (1944).
63. 18 VA Cases (4 Munford) 1 (1814).
64. Id. at 50.
65. Id. at 36.
66. Id. at 30.
67. Id. at 26.
68. 14 U.S. (1 Wheat.) 304 (1816).
69. Letter from J. Story to C. Ticknor (Jan. 22, 1831) reprinted in 2 Life and Letters of Joseph Story 48-49 (W. Story ed. 1851).
70. Dunne, "Joseph Story: 1812 Overture," 77 Harv. L. Rev. 240, 277 (1963).
71. 14 U.S. (1 Wheat.) at 339.
72. Id. at 336-37.
73. Id. at 338.
74. N. Risjord, The Old Republicans: Southern Conservatism in the Age of Jefferson 178 (1965).
75. Ammon, supra note 48, at 410.
76. Risjord, supra note 74, at 177-78; see Gelbach, supra note 3, at 93; see generally Campbell, "John Marshall, the Virginia Political Economy, and the Dartmouth College Decision," 19 Am, J. Leg. Hist. 40, 55 (1975).
77. 17 U.S. (4 Wheat.) 316 (1819).
78. Id.
79. Id. at 420-24; see U.S. Const. art. I, sec. 8.
80. See generally J. Marshall, supra note 16; see generally 1 Beveridge, supra note 2; see L. Baker, John Marshall: A Life in Law 46 (1974).
81. See G. Gunther, John Marshall's Defense of McCulloch v. Maryland (intro. 1969).
82. 17 U.S. (4 Wheat.) at 429.
83. Id. at 430.
84. Id. at 350. (argument of J. Hopkinson, counsel).
85. Gunther, supra note 81, at 25.
86. 14 U.S. (1 Wheat.) 304 (1816).
87. Gunther, supra note 81, at 1-20 attributes Brockenbrough with authorship of the "Amphictyon" essays.
88. "Amphictyon" letter (March 30, 1819), reprinted in Gunther, supra note 81, at 56.
89. Horsnell, supra note 81, at 13-14.
90. "Amphictyon" letter (March 30, 1819), supra note 81, at 61-62.
91. Gunther, supra note 81, at 13-14.
92. Id. at 15; see "A Friend to the Union" letter (April 24, 1819), reprinted in 14 Mass. Hist. Soc. Proceedings 325 (2d ser. 1900-01).
93. "Hampden" letter (June 18, 1819), reprinted in 2 John P. Branch Historical Papers of Randolph-Macon College 93-94, 101-05 (1905).
94. "Hampden" letter (June 22, 1819), reprinted in Gunther, supra note 81, at 145.
95. Id.
96. Note, 66 Harv. L. Rev., supra note 21, at 1253; see U.S. Const. amend. X.
97. "Hampden" letter (June 22, 1819), reprinted in Gunther, supra note 81, at 145.
98. Id.
99. Id.
100. Horsnell, supra note 4, at 165.
101. "Hampden" letter (June 22, 1819) reprinted in Gunther, supra note 81, at 152-53.
102. Id. at 152.
103. "Amphictyon" letter (March 30, 1819) reprinted in Gunther, supra note 81, at 58.
104. "A Friend of the Constitution" letter (June 30, 1819) reprinted in Gunther, supra note 81, at 203-04.
105. "A Friend of the Constitution" letter (July 14, 1819) reprinted in Gunther, supra note 81, at 203-04.
106. Gunther, supra note 81, at 17.
107. Judiciary Act of 1789, ch. 20, sec. 25, 1 Stat. 73, 85 (1789).
108. Baker, supra note 80, at 620.
109. U.S. Const. amend. XI.
110. 19 U.S. (6 Wheat.) at 290-312 contains Barbour's arguments.
111. Id. at 382-83, 391.
112. Id. at 385.
113. 9 U.S. (5 Cranch) 115 (1809).
114. 1 Beveridge, supra note 2, at Ch.'s 6-8, J. Marshall, supra note 25, at 10.
115. 19 U.S. (6 Wheat.) at 388.
116. Id. at 415-16.
117. Id. at 410.
118. Id. at 412.
119. "On the Lottery Decision" (Spencer Roane as "Algernon Sydney," May 29, 1821) reprinted in 2 John P. Branch Papers of Randolph-Macon College 91 (1906).
120. See Malone, supra note 29, at 404-05; see Newmyer, supra note 47, at 46-47.
121. "On the Lottery Decision" (May 29, 1821) reprinted in 2 John P. Branch Papers, supra note 119, at 103.
122. "On the Lottery Decision" (June 1, 1821) reprinted in 2 John P. Branch Papers, supra note 119, at 117.
123. U.S. Const. amend. X.
124. "On the Lottery Decision" (June 1, 1821) reprinted in 2 John P. Branch Papers, supra note 119, at 113.
125. Id. at 113; see also "On the Lottery Decision" (June 5, 1821) reprinted in 2 John Branch Papers, supra note 119, at 143.
126. "On the Lottery Decision" (June 1, 1821) reprinted in 2 John P. Branch Papers, supra note 119, at 119.
127. 1 VA Cases 20 (1793).
128. "On the Lottery Decision" (June 1, 1821) reprinted in 2 John Branch Papers, supra note 119, at 129.
129. Letter from John Marshall to Joseph Story (Sept. 18, 1821) reprinted in 14 Mass. Hist. Soc. Proceedings (2d ser. 1900-01) 327-330.
130. Letter from John Marshall to Joseph Story (Sept. 18, 1821( reprinted in Mass. Hist. Soc. Proceedings, supra note 129, at 330-31.
131. Id. at 330; see Dodd, supra note 59, at 784; see Lerner, supra note 16, at 426 n. 10.
132. Ammon, supra note 48, at 408.
133. Note, 66 Harv. L. Rev., supra note 21, at 1256.
134. Letter from Spencer Roane to Archibold Thweatt (Dec. 24, 1821) reprinted in 2 John P. Branch Papers, supra note 94, at 142.
135. Letter from James Madison to Spencer Roane (June 29, 1821) reprinted in 9 The Writings of James Madison (1819-1836) 66-68 (G. Hunt ed. 1910).
136. See Osborne v. Bank of United States, 22 U.S. (9 Wheat.) 738 (1824); see Bank of United States v. Planter's Bank of Georgia, 22 U.S. (9 Wheat.) 904 (1824); see Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827).
137. This comes from part of the title of Clyde Gelbach's dissertation, supra note 3.