Academic journal article
By Wheaton, Henry; Pfander, James E.
Constitutional Commentary , Vol. 12, No. 2
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)
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. …