The dangers of the union.

AuthorWheaton, Henry
PositionPart 1 - Essays from 1821 on the US Supreme Court

From May to August 1821, Henry Wheaton published The Dangers of the Union, a series of eight essays defending the Supreme Court and Chief Justice John Marshall's then recent decision in Cohens v. Virginia.(1) Wheaton's essays appeared under the pseudonym "A Federalist of 1789"(2) and have been a subject of some interest to students of the Marshall Court. Professor G. Edward White, for example, features the Wheaton essays in his discussion of the pamphlet wars that broke out in the wake of the Cohens decision.(3) As Professor White notes,(4) the Wheaton essays sought in part to counter such "Richmond Junto" critics of the Marshall Court as Spencer Roane,(5) whose essays under the pen-name Algernon Sidney advocated a compact theory of the Union much at odds with the national vision of the Chief Justice.(6)

The Wheaton essays, reprinted here in their entirety in this and the next issue, deserve wider circulation. Of interest to historians, the essays also shed light on a variety of contemporary issues in federal jurisdiction. For Wheaton not only offers a cogent defense of the assertion of jurisdiction in Cohens, he also offers a fairly detailed account of Article III and the Eleventh Amendment. Of particular importance to federal courts scholars, Wheaton appears to have accepted a two-tier theory of federal judicial power similar to that advocated by Justice Joseph Story in Martin v. Hunter's Lessee.(7) Wheaton also reads the Eleventh Amendment, much like modern diversity theorists, as curtailing only those suits and proceedings against state parties in which federal jurisdiction depends on the alignment of the parties.(8)

Historians have treated Wheaton's work as virtually an official defense of Cohens;(9) certainly Wheaton's position as the Court's reporter at the time the essays appeared and his close relationship with Marshall and Story lends strength to such an interpretation.(10) But Wheaton's analysis deserves notice on its own terms as well. He was a well-known legal scholar and advocate: he played an important role in amending New York's constitution; he was frequently mentioned as a possible nominee to the Court; and he published two works (Elements of International Law (1836) and The History of the Law of Nations in Europe and America (1845)) that quickly became classics in their field.

The Wheaton essays also demonstrate that the nature of constitutional government and the obligation of the states to accept federal definition of the scope of federal power were issues much on the mind of the day's political thinkers. To be sure, at the time Wheaton wrote, Congress had pasted over the slavery crisis with the Missouri Compromise of 1820. Yet Wheaton plainly understood that issues of state sovereignty would recur, and repeatedly emphasized throughout the essays that accepting the position of the Court's critics would mean the end of the Union. Ironically enough, the man who would later become the nation's leading apostle of interposition--John C. Calhoun--believed Cohens to have been rightly decided at the time and joined with Wheaton in developing strategies to republish Wheaton's defense of national authority.(11)

Editor's Note:

The first four essays appear in this issue; the remaining four essays will appear in the next issue. Professor Pfander has retained the somewhat anachronistic spellings and modest misquotations in Wheaton's original essays. He has, however, corrected typographical errors and has also altered punctuation where the original was unduly confusing. Wheaton's footnotes appear as they did in the original with asterisks; Professor Pfander's explanatory footnotes have been numbered.

No. 1. (The American, May 8, 1821)

Whoever has reflected upon the public transactions of this country since the war of the revolution, must be convinced that we have degenerated in public virtue. Professions of patriotism, indeed, abound in the present time; but that disinterested love of country which marked our first efforts against the parent state is almost extinguished, or is smothered by the intrigues of corrupt faction. The encroachments which have been continually making by unprincipled demagogues against that National Government which is the only sure guarantee of our republican institutions, and of private rights, as well as our shield against foreign aggression, have been viewed with so much supineness and indifference, or opposed with so little moral courage, by those whose duty it was to resist them, that I cannot help regarding those repeated attacks upon the authority of the Union as among the worst signs of the times. One of the most remarkable instances of this profligate daring on the part of the enemies of the National Government will be found in the recent attempt to resist the authority of the Supreme Court of the United States to determine, in the last resort, all questions arising under the Constitution and laws of the Union. One would think if there was any one prerogative of the Federal Government more undeniable than another, it was this. It is, in fact, the great conservative power of the Union.

We all remember Mr. CLINTON's denunciation of the General Government for its alleged attempt to force the sale of tickets in a lottery established by Congress, at the city of Washington, for local purposes, throughout the several states, in defiance of the laws of those states prohibiting such sale; when, in fact, Congress had not authorized their sale beyond the limits of the District of Columbia, nor had the President countenanced it, nor the courts of the Union at that time expressed any opinion upon the question. But it suited the views of Mr. Clinton to chime in with the language of certain state demagogues in other quarters, who affected great alarm for the rights of the states, because they were not permitted to trample those of the National Government and of individuals under their feet. This denunciation was peculiarly adapted to inflame the passions of the people of Ohio, who had been by base arts excited to hostility against one of the principal institutions of the government,(12) and whose favour it has been one of Mr. Clinton's chief objects to cultivate by all the means in his power, with a view to the "all hail hereafter." It was also intended to extort the applause of some of the leading politicians of Virginia, from whom we might have expected better things, but whose doctrines respecting the powers of the General Government I consider as most pernicious heresies, although supported by the subtlety of acute and ingenious minds.

The question which has recently been much agitated in that state respecting the appellate power of the Supreme Court of the United States in cases arising in the state courts respecting the laws and Constitution of the Union, is one of the most vitally important constitutional questions that has been discussed since the establishment of the present National Government. I feel all due respect for some of those gentlemen in Virginia; I doubt not they are perfectly sincere in the views they have taken of the Constitution? but at the same time I must frankly declare my impression that those views have arisen from an original antifederal bias in their minds, and an undue jealously of the authority of the National Government, arising from the ill-judged acts of a former administration. That those views are entirely erroneous I am firmly convinced; but if they are correct, then are the Constitution, and laws, and treaties of the Union, a dead letter.

Very able political and professional men are satisfied that the whole argument against the jurisdiction of the Supreme Court has been completely demolished in the opinion delivered by Chief Justice MARSHALL, at the last term, in the case of Cohens against Virginia;(13) and certainly it bears the strongest marks of his acute and enlarged mind, which when it applies itself to the interpretation of the fundamental law, soars above the ordinary element of a judge and a technical lawyer, and displays the wisdom and skill of a great lawgiver. But there are some considerations of a more popular and obvious nature, which strike my mind as conclusive that the argument against the jurisdiction, however it may be entangled with metaphysical subtleties, must be fallacious and unsound.

I suppose no person will deny that the Constitution, laws, and treaties of the United States must be paramount to the laws of the particular States of the Union, or they are nothing: of course, I mean such laws and treaties as are made in conformity with the Constitution. This supremacy is expressly declared in the Constitution; and if it were not declared, it must necessarily be so, from the very nature of our federative government. Where there is collision and repugnancy, the parts cannot control the whole; the whole must control the parts: otherwise there would be worse confusion than if we had no General Government.

Assuming this to be undeniable, I should be glad if some gentleman better versed in these matters than I can pretend to be, would inform me how this supremacy can be asserted and enforced, in a legal and peaceable manner, but by exerting that very appellate power which is by some denied to the Supreme Court.

I can conceive of only two modes in which this object could be accomplished. One is, by doing what Congress has attempted to do in the Judiciary law of 1789,(14) giving the Supreme Court of the Union appellate jurisdiction in all cases arising in the State Courts involving the construction or application of the Constitution, laws, and treaties or the United States; Or the enactment of a law for removing from the State Courts all such cases, the instant the question under the Constitution, &c. arises, and before any trial or determination in the State Court respecting it.

I own that Chief Justice Marshall's opinion has satisfied me that the mode of dealing with this difficult subject which Congress has...

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