Wedgewood, Ruth, Constitutional Commentary
Chief Justice John Marshall is known for his celebration of a strong national voice for the early Supreme Court, and so it is hardly surprising that we tend to overlook the philosophical cuckoo in his family nest. Not all Americans willingly conceded a monopoly in constitutional interpretation to the early nineteenth century Court. One of the most powerful challenges to the authority and method of the Supreme Court came from within Marshall's family, scattered across the frontier of Virginia and Kentucky.
Distant from the frontier's problems of economy and politics, the Court used a lace-cuff coastal jurisprudence of vested rights to overthrow the land laws of the backcountry, designed to assist settlers clearing and improving the land. Henry Clay warned that the judgments in Green v. Biddle,(1) overturning Kentucky land laws, threatened "the most tremendous effects of any ever delivered by a judicial tribunal."(2) Rhetorical insurrectionists accused the Court of imposing an alien jurisprudence, unsuited to the circumstances of ordinary men and local needs.
A fractious member of John Marshall's own family joined this levee en masse against the Court, campaigning for interpretive comity. Humphrey Marshall -- first cousin and brother-in-law to the Chief Justice, former Senator, newspaper editor, and oddly enough for a self-styled Federalist, a firebrand of republican rhetoric -- insisted that the Supreme Court should give weight to the constitutional views of popular bodies, including state legislatures, even be checked by popular means.
Cousin Humphrey lived a prevocative life, stubbornly persisting as a Federalist in Kentucky from the 1780s through the 1820s, even when Federalists were profoundly unpopular. He was a unionist, casting Kentucky's lot with the political consortium of the Atlantic coast states, despite the natural gaze of Kentucky down its watercourse to the Mississippi, New Orleans, and the Gulf of Mexico. He opposed the calls in the 1780s for Kentucky to declare unilateral independence from Virginia. He voted for ratification of the new federal Constitution in the Virginia Convention in 1788, despite Kentucky's anger that the federal government indifferently defended American navigation rights on the Mississippi, and he consented to the Jay Treaty in the United States Senate. He constantly denounced and opposed the schemes -- real and imagined -- of Wilkinson, Burr, and Harry Innes to involve Kentucky with the Spanish and French in the Mississippi Valley. Strangely enough for a dyed-in-the-wool Federalist,(3) one of Cousin Humphrey's most spirited adventures toward the end of his life was his attack upon the United States Supreme Court.
Sketching Cousin Humphrey's complaints may help us understand something of the political culture of the 1820s, and why John Marshall's view of a single hierarchical structure for the resolution of constitutional questions was seen as unattractive by so many Virginians and Kentuckians. It has been a tenet of faith in American constitutional law that John Marshall's method and logic were right -- that the Supreme Court has properly tried to enforce a monopoly of voice in constitutional matters and to establish the High Court's final power to measure the federal Constitution by its own lights, without indulgence of the contrary views of state courts or legislators. To those of us who have witnessed the renewed debate of the late twentieth century on how to balance the center against the periphery, and how to reconcile cooperative union with local desires for self-governing authority, the normative superiority of Nathan Dane, Joseph Story, and John Marshall may no longer seem self-evident. To those who have watched the Supreme Court spurn other guides to interpretation of the federal Constitution -- be it the customary international law of human rights, or state supreme courts' differing views of what rights are fundamental to republican government as witnessed by their own constitutions -- the federal Supreme Court's interpretive hermeticism is less attractive. …