In the rancorous aftermath of MCCULLOCH V. MARYLAND (1819), several states, led by Virginia and Ohio, denounced and defied the Supreme Court. State officers of Ohio entered the vaults of a branch of the Bank of the United States and forcibly collected over $100,000 in state taxes. (See OSBORN V. BANK OF THE UNITED STATES.) Virginia's legislature resolved that the Constitution be amended to create "a tribunal for the decision of all questions, in which the powers and authorities of the general government and those of the States, where they are in conflict, shall be decided." Widespread and vitriolic attacks on the Court, its doctrine of IMPLIED POWERS, and section 25 of the JUDICIARY ACT OF 1789 showed that MARTIN V. HUNTER ' S LESSEE (1816) and McCulloch were not enough to settle the matters involved, especially as to the JURISDICTION of the Court over state acts and decisions in conflict with the supreme law of the land as construed by the Court. Accordingly a case appears to have been contrived to create for Chief Justice JOHN MARSHALL an opportunity to reply officially to his critics and to reassert both national supremacy and the supreme appellate powers of his Court.
Two brothers surnamed Cohen sold lottery tickets in Norfolk, Virginia, contrary to a state act prohibiting their sale for a lottery not authorized by Virginia. The Cohens sold tickets for a lottery authorized by an act of Congress to benefit the capital city. In Norfolk the borough court found the defendants guilty and fined them $100. By Virginia law, no appeal could be had to a higher state court. The Cohens, prosperous Baltimore merchants who could easily afford the paltry fine, claimed the protection of the act of Congress and removed the case on WRIT OF ERROR from the local court to the highest court of the land; moreover they employed the greatest lawyer in the nation, William Pinckney, whose usual fee was $2,000 a case, and another distinguished advocate, David B. Ogden, who commanded a fee of $1,000. More was at stake than appeared. "The very title of the case," said the Richmond Enquirer, "is enough to stir one's blood"?a reference to the galling fact that the sovereign state of Virginia was being hauled before the Supreme Court of the United States by private individuals in seeming violation of the ELEVENTH AMENDMENT. The state governor was so alarmed that he notified the legislature, and its committee, referring to the states as "sovereign and independent nations," declared that the state judiciaries were as independent of the federal courts as the state legislatures were of Congress, the twenty-fifth section of the 1789 notwithstanding. The legislature, having adopted solemn resolutions of protest and repudiating federal JUDICIAL REVIEW, instructed counsel representing Virginia to argue one point alone: that the Supreme Court had no jurisdiction in the case. Counsel, relying on the Eleventh Amendment to argue that a state cannot be sued without its consent, also contended that not a word in the Constitution "goes to set up the federal judiciary above the state judiciary."
Marshall, for a unanimous Court dominated by Republicans, conceded that the main "subject was fully discussed and exhausted in the case of Martin v. Hunter," but that did not stop him from writing a fifty-five-page treatise which concluded that under section 25 the Court had jurisdiction
in the case. Marshall said little that was new, but he said it with a majestic eloquence and a forcefulness that surpassed JOSEPH STORY 's, and the fact that the Chief Justice was the author of the Court's nationalist exposition, addressed to STATES RIGHTS ' advocates throughout the country, added weight and provocation to his utterances. He was sublimely rhapsodic about...