Making Our Democracy Work (5 page)

To show that the Court had acted not from political expediency but out of judicial necessity, Marshall had to make clear that Marbury’s claim satisfied each and every one of the statute’s requirements. Only then would it be
necessary
to move on to the great constitutional question of judicial review in order to avoid a legally incorrect decision (that is, a decision in Marbury’s favor). Marshall could not both show that he
had
to reach the constitutional questions and decide
nothing but
the constitutional questions. He could not follow what has become one canon of judicial decision making, namely, “try to avoid making constitutional decisions by deciding nonconstitutional matters first,” without ignoring a different canon of judicial decision making, namely, “where a court lacks jurisdiction, do not decide the merits of the case.”

In a political world suspicious of Marshall’s efforts to expand the
Court’s power, a world where the Court’s basic judicial review power was itself yet undetermined, Marshall’s choice is understandable. By explaining why he could not rest his decision on nonconstitutional grounds, he would diminish the public’s concern that courts, armed with the power to decide constitutional questions, would reach out and decide them unnecessarily, thereby needlessly limiting the power of the legislature. They would decide constitutional questions only when they had to.

I
N A SENSE
, both the criticisms and response are beside the point, for consider what Marshall did. He made clear that courts will ordinarily protect the legal rights of individuals, will ordinarily review the lawfulness of executive branch activity, and will themselves determine whether the “political” nature of an executive branch decision precludes court review and, above all, that a federal statute contrary to the Constitution cannot bind the courts. He supported these conclusions with strong legal arguments, including considerations similar to those set forth by Hamilton and Iredell, namely (1) the Constitution’s “fundamental” and “superior” legal role, (2) the nature of judicial expertise, and (3) the need to avoid an all-powerful legislature.
And because Jefferson won the case, Marshall did not have to worry whether the government would enforce his decision.
¹⁸

For present purposes, the last-mentioned fact is particularly important. Faced with circumstances that threatened to demonstrate, and would thereby reinforce, the Court’s institutional weakness, Marshall avoided the enforcement issue while holding that the Court had the power to declare an act of Congress unconstitutional and refuse to apply it.

Consider too what Marshall did not do. He did not decide that the Court had an
exclusive
power to interpret the Constitution or a power superior to that of other branches. Indeed, he wrote that the “courts,
as well as other departments
, are bound by” the Constitution. Nor did the case of
Marbury v. Madison
answer Hotspur’s question: Would the public follow an unpopular Court decision with which it strongly disagrees? Marshall feared a negative answer; and the next case shows how right he was to worry.
¹⁹

A
LTHOUGH
M
ARBURY
GAVE
the Court the power to refuse to apply an act of Congress on the ground that it violated the Constitution, the Court did not again exercise that power until its decision in the
Dred Scott
case more than fifty years later. This hesitancy to find a federal statute unconstitutional, like Marshall’s strategic view of
Marbury
, suggests a Court deeply uncertain as to whether the president, the Congress, or the public itself would accept the Court’s views about the Constitution—at least when they strongly disagreed with those views. And without assurance that other government officials and the public would follow the law, how could the Court successfully exercise its review power? How could it help to protect, say, an unpopular minority? How could it help make the Constitution more than words on paper?

Today judges from all over the world ask similar questions. A chief justice of an African nation struggling to maintain an independent judiciary recently asked me directly, “Why do Americans do what the courts say?” What in the Constitution makes this likely? What is the institutional device that makes court decisions effective? What, she wondered, is the secret? I answered that there is no secret; there are no magic words on paper. Following the law is a matter of custom, of habit, of widely shared understandings as to how those in government and members of the public should, and will, act when faced with a court decision they strongly dislike.

My short answer to the chief justice’s question was to say that history, not legal doctrine, tells us how Americans came to follow the
Supreme Court’s rulings. My longer answer consists of several examples that illustrate different challenges the Court and the nation faced as gradually, over time, the American public developed those customs and habits.

The Cherokee Indian cases of the 1830s provide an early example of enforceability put to the test. The Cherokee tribe sued to protect its legal rights to its ancestral lands in northern Georgia. The U.S. Supreme Court held in its favor. What happened next is an unhappy story.
¹

I
N THE FIRST
part of the nineteenth century, a dispute developed between the Cherokee Indians and their neighbors, settlers in the state of Georgia. The dispute was simple. The Indians owned land, rocks, and minerals that the white Georgia settlers wanted, and the Indians did not want to give them up. The Georgians had tried hard for two decades to convince three presidents (James Monroe, John Quincy Adams, and Andrew Jackson) to remove the Indian tribes from Georgia and send them to the West. But they got nowhere. Monroe, for example, told the Georgians that he would use only reasonable, peaceful means to convince the tribe to move.
²

The Cherokees, who had lived in northern Georgia far longer than the Georgians, had moved on from their purely hunting/fishing life to become farmers and landowners. They had developed an alphabet, established a printing press, and built a capital called New Echota. Under the leadership of their great chief John Ross, they had also adopted a constitution. They had no reason to leave their own land. And they told President Monroe that “it is the fixed and unalterable determination of this nation never again to cede one foot more of our land.” They added that they were not foreigners but the original inhabitants of America, who “now stand on the soil of their own territory” and who will not “recognize the sovereignty of any State within the limits of their territory.” And they would later tell President Andrew Jackson that when they moved, they would not go west but, instead, would only go “by the course of nature to sleep under
this
ground which the Great Spirit gave our ancestors.”
³

Then, in 1829, gold was found on the Cherokee lands, and the Georgians
decided to break the stalemate. They entered the Cherokee territory and began to work the gold mines. They passed laws that nullified all Cherokee laws, prohibited the Cherokee legislature from meeting, and ordered the arrest of any Cherokee who argued against moving to the West. Furthermore, the Georgians found an ally in a new president, Andrew Jackson, who announced his support for Georgia, refused to keep federal troops in the mining area to enforce the Indians’ rights, and urged the Indians to move west.
⁴

Some in the federal Congress opposed removing the Indians from their homes, churches, and schools to send them to a “wilderness.” That minority pointed out that the “evil … is enormous; the violence is extreme; the breach of public faith deplorable; the inevitable suffering incalculable.” But a congressional majority felt differently. And Congress enacted a removal bill that was intended to enforce the president’s position.
⁵

Lacking sufficient support in the elected branches of the federal government, where could the Cherokees turn for help? Could they look to the law? After supporting the British during the Revolution, the tribe had signed treaties with the new United States in which the United States promised to protect the Cherokees’ land and guarantee its boundaries. The Constitution specifically says that not only the Constitution and laws made thereunder but also
“all Treaties
made … under the Authority of the United States shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the … Laws of any State to the Contrary notwithstanding.”
⁶

Although the Cherokees’ legal case seemed ironclad, the same political circumstances that led them to put their hopes in the law made it difficult to get that law enforced. The Georgians would not protect them. A majority in Congress apparently did not care. And Andrew Jackson had refused the Indians’ request to enforce their treaty. Hence, the Cherokees could look only to the courts for protection.

But the tribe’s unpopularity and political weakness made bringing a lawsuit more difficult than one might think. The tribe found a lawyer, William Wirt, a former attorney general of the United States and one of the greatest lawyers of his day. Wirt thought that “the Supreme Court would protect” the tribe. But Wirt could not be certain that Georgia
would follow the law, even if embodied in a Supreme Court decision. After all, some years earlier, when John Quincy Adams was president, the Georgians had seized land belonging to the Creek tribe, passed resolutions declaring they owned it, sent surveyors to map the territory, and said they would “resist to the utmost” any federal effort, including any Supreme Court effort, to stop them. After all this, the Creeks just gave up.
⁷

Moreover, how was Wirt to get his case to the Supreme Court? He hesitated to bring a case in Georgia’s own courts—for example, by suing Georgians for trespass. He feared that Georgia state judges might indefinitely delay matters by raising problems of state property law. He thought for a time that he might represent a Cherokee Indian—Corn Tassel—whom the Georgians had arrested for committing a serious crime in Cherokee territory. Wirt would appeal Corn Tassel’s case to the Supreme Court, arguing that Georgia did not have the power to enforce its laws in the Cherokees’ territory. But Georgia’s governor and legislature announced that they would pay no attention to the Court’s decision and would resist with force any effort to enforce a Supreme Court order. To make certain a Court order would have no effect, Georgia executed Corn Tassel before the Supreme Court could hear the case.
⁸

Wirt next tried suing Georgia directly in the Supreme Court, in the case of
Cherokee Nation v. Georgia
. He thought the Court would hear and decide the case. After all, the Constitution said that the Supreme Court had “original Jurisdiction” over cases “in which a State shall be Party.” And as to enforcement, he told the Court that it should not assume that the president or a state would not do its “duty.” There was a “moral force in the public sentiment,” he said, that would “constrain obedience.”
⁹

The Court, however, apparently decided not to place its faith in “public sentiment.” In an opinion written by Chief Justice Marshall, a divided Court (4 to 2) set forth a highly dubious interpretation of the Constitution, as allowing the Court “original Jurisdiction” only in those cases where a state is a party
and
the case involves another state, a citizen of a different state, or a foreign state. Because the Cherokee tribe was none of these but, rather, a “domestic dependent nation[],” the
Court dismissed the case on technical, jurisdictional grounds. The Georgians were delighted. Georgia’s governor wrote that the state “must put an end to even the semblance” that the Indians could constitute “a distinct political society.”
¹⁰

After this setback, Wirt finally found the case he had been looking for. Georgia law required “all white persons residing within the limits of the Cherokee Nation” to take an oath to support Georgia’s laws. A New England missionary, Samuel A. Worcester, refused. (He sent the governor a hymnbook instead.) The governor ordered Worcester arrested, and a Georgia court convicted him of violating the law and sentenced him to four years of hard labor. Georgia would not free Worcester, but it was unlikely to execute him. Furthermore, the Judiciary Act of 1789 gave the Supreme Court the authority to hear cases in which a state court had rejected a party’s claim that a state’s criminal law violated federal law, which the Constitution made “supreme.” Thus the law made clear that Wirt could appeal Worcester’s case to the Supreme Court, making the argument that application of Georgia’s criminal law in Cherokee territory violated treaties made by the United States, treaties that the Constitution made “supreme.”
¹¹

The Court heard the case,
Worcester v. Georgia
, and by a vote of 5 to 1 found in Worcester’s favor. Again Chief Justice Marshall wrote the Court’s opinion. He pointed out that a federal statute empowers the Court to review a final state court judgment that upholds a state statute and that also rejects a claim that the statute is repugnant to the Constitution, treaties, or laws of the United States. Furthermore, another federal statute requires the Court to hear such an appeal. In Marshall’s words, the Court therefore has “the duty, … however unpleasant,” to hear the case.
¹²

Moreover, the Court held that Worcester was clearly right about the merits of his case. Neither Britain nor the colonies nor the United States ever extinguished the Cherokees’ independence. All had treated the Indian tribes as “nations capable of maintaining the relations of peace and war.” The United States specifically promised that it would guarantee the Cherokees all lands “not … ceded” and would regulate trade for their “benefit and comfort.” Congress too had recognized that Indian tribes are “distinct political communities” with a right to all the
lands within their boundaries. Thus Georgians could not enter the Cherokee lands without the Cherokees’ consent, and Georgia could not apply its state law there.
¹³