The passive-aggressive virtues: Cohens v. Virginia and the problematic establishment of judicial power.

Author:Graber, Mark A.

In his celebrated "Foreword" to the 1961 Harvard Law Review, Alexander Bickel coined the expression "passive virtues" to refer to certain jurisdictional doctrines or judicial "techniques" for "withholding ultimate constitutional judgment."(1) Warren Court Justices could dodge dangerous political altercations, Felix Frankfurter's former clerk declared, by making greater use of such devices as denials of certiorari, mootness, ripeness, desuetude, and statutory interpretation when they were confronted with seemingly intractable constitutional controversies. Bickel urged the use of these "passive virtues" for both normative and pragmatic reasons. Federal Justices should hesitate before invalidating the policies preferred by the people's elected representatives, he insisted, because judicial review was "a deviant institution in a democratic society."(2) Moreover, Bickel thought that prudent Justices rationed judicial rulings on constitutional matters in order to protect the Court's scarce political capital. Too many controversial decisions would expose "the inner vulnerability of an institution which is electorally irresponsible and has no earth to draw strength from."(3) This need to preserve judicial power justified certain deviations from otherwise binding canons of legal interpretation. In Bickel's view, Justices could strive for convenient results rather than doctrinal consistency only when they chose to avoid making constitutional decisions. "[T]he techniques and allied devices for staying the Court's hand," he concluded, "cannot themselves be principled in the sense in which we have a right to expect adjudications on the merits to be principled."(4)

The Marshall Court made substantial use of similar legal techniques, which I describe as the "passive-aggressive" virtues. Federal Justices in the early nineteenth century frequently expounded on the constitutional controversies that divided the new nation, even when such expositions were not strictly relevant to the ultimate outcome of the case they were adjudicating. Contemporaries and future commentators note how Chief Justice John Marshall frequently "went out of his way" to discuss constitutional "issues not necessarily presented" by the fact situation before the Court.(5) Thomas Jefferson, in particular, complained bitterly that the "practice of John Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and censurable."(6) Nevertheless, anticipating Bickel's institutional concerns and recommendations, the Marshall Court frequently manipulated various federal statutes and jurisdictional grants in order to avoid handing down blunt judicial challenges to hostile political forces. Although Marshall penned many bold constitutional assertions, the tribunal he led hardly ever issued bold judicial orders. Strict Jeffersonians, old Republicans, and Jacksonians may have frequently been enraged by the tone of early Supreme Court opinions, but Marshall and his brethren rarely reached decisions that these political leaders could actually disobey.

Marbury v. Madison is the best known and quintessential example of how the Marshall Court used the passive-aggressive virtues to insulate controversial constitutional claims from direct political attack.(7) This paper discusses Cohens v. Virginia,(8) an additional, less appreciated, instance of the passive-aggressive virtues in action. In the face of a sharp challenge from Virginia, the Marshall Court unanimously held that persons convicted of state crimes could appeal that judgment in federal courts. The Justices also ruled that the supremacy clause barred states from interfering in any way with congressional efforts to govern the District of Columbia. Nevertheless, in the spirit of Marbury, the Justices upheld a state court decision that fined two Maryland entrepreneurs for selling tickets to a congressionally sanctioned lottery. Although the Court decided every constitutional issue against the Old Dominion, the Justices ruled that the federal law authorizing the lottery did not preempt Virginia's ban on the sale of out-of-state lottery tickets. By adopting a highly implausible reading of the legislation establishing the Grand National Lottery, Marshall's opinion managed to conclude that congress had not intended to authorize the sale of lottery tickets outside of the nation's capital.

Following Marshall, commentators have assumed that the last part of Cohens is devoted to an uninteresting discussion of the precise statutory powers Congress vested in the Corporation of Washington. Hence, the last eight pages of Marshall's Cohens opinion have received no scholarly attention.(9) In fact, the substantive part of the Cohens opinion conceals major constitutional issues that were central concerns of the Marshall Court. Virginia's effort to ban out-of-state lotteries was similar, if not identical, to Maryland's effort to tax out-of-state banks. Marshall's contemporaries were well aware of the constitutional connections between Cohens and McCulloch v. Maryland. Leading lawyers, including Attorney General William Wirt, publicly condemned the Cohens prosecution as inconsistent with the principles of national supremacy declared in the national bank case. By misrepresenting both Virginia and federal law, however, Marshall managed to decide Cohens in favor of Virginia without having to explain why Virginia could ban out-of-state lotteries, but Maryland could not tax out-of-state banks.

The Marshall Court's use of the passive-aggressive virtues suggests a new understanding of how and whether political considerations influenced that tribunal. Marshall's manipulation of Virginia and federal law in Cohens supports claims that he and his brethren were willing to twist legal authorities to reach predetermined results. As noted below,(10) Marshall could sustain Virginia's ban on the sale of out-of-state lotteries only by ignoring both the form and substance of his McCulloch opinion. The results the Marshall Court sought to achieve, however, were not always the policies preferred by the Adams wing of the Federalist party or the Nationalist wing of the Democratic-Republican coalition. In Cohens and Marbury, the court strained legal texts and precedents to reach judicial rulings that by their very nature could not be disobeyed by hostile political forces. Just as scholars believe that Marshall manipulated the Judiciary Act of 1789 to avoid ordering Jefferson to hand over William Marbury's judicial commission, so Marshall seems to have deliberately misread federal law in order to avoid overturning Virginia's ban on the sale of out-of-state lottery tickets.

The Marshall Court's decision to sustain the Virginia law at issue in Cohens also calls into question basic assumptions about the development of judicial power in the United States. Constitutional historians and theorists blithely assume that the Marshall Court established the power to declare laws unconstitutional in Marbury and Martin v. Hunter's Lessee.(11) Cohens, in conventional analyses, was the decision that marked the end of the process by which judicial review was placed on a firm footing,(12) a "powerful answer," in Albert Beveridge's words, to opponents of federal judicial power.(13) In fact, the Cohens opinion bespeaks a tribunal painfully aware that it lacked the political power necessary to declare laws unconstitutional. As used by the Marshall Court in Cohens and Marbury, the passive-aggressive virtues were the means by which judicial power could be asserted without actually being exercised. Thus, when scholars look at what the Marshall Court did in Cohens and other cases instead of what the Justices said, the evidence indicates that judicial review was not well established by 1821. In what sense, after all, can a court be thought to possess the power to declare laws unconstitutional when the Justices consistently distort legal texts to get results that will not have to be enforced?


    The contemporary neglect of Cohens stems partly from the apparent political insignificance of the case. Marbury, McCulloch, Gibbons v. Ogden, and other Marshall Court decisions played prominent roles in the central partisan and economic struggles of the early nineteenth century. Cohens, by comparison, seems to involve little more than two obscure entrepreneurs who were fined $100 for violating a minor state law.(14) Citizens of the early American republic, however, recognized that the Virginia ban on out-of-state lotteries and the Grand National Lottery were important governmental policies. The stakes in Cohens were the future of Washington D.C. and the scope of congressional power over the new nation's capital. These issues were vigorously debated by the leading politicians and lawyers of the time. Indeed, the lawyers who argued Cohens, William Wirt, William Pinkney, Daniel Webster, David Ogden, Philip Barbour and Alexander Smyth, were at least as distinguished as the attorneys who had argued McCulloch two years previously.(15)

    The persons responsible for framing and ratifying the constitution intended to make Washington D.C. "the vital center of national life."(16) Philip Freneau, an influential journalist of the young republic, hoped that Congress would "erect[ I a city, which like Rome in her glory, may be called the strength of nations, the delight of the universe, the birth place of sages, and, if not the abode of gods, yet truly the nurse of heroes, statesmen and philosophers.(17) In order to realize this vision, the nation's capital was designed to express basic American political principles. Washington, James Sterling Young notes, "was a planned community ... ; planned for the same larger purpose of securing the institutions of power against the influence of historical fortuities; the product of that same revolutionary urge ... which had inspired the Constitution of 1787."(18)...

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