Making Our Democracy Work (6 page)

Because the state statute used to prosecute Worcester “is consequently void,” Georgia had to release him. After all, if Georgia had taken property under the authority of an invalid law, it would have to return the property to its owner; the same principle applied when the state invalidly deprived Worcester of his “personal liberty.”
¹⁴

In a well-aimed aside, the Court referred to the enforceability problem. It pointed out that Georgia had “seized” Worcester and “carried [him] away” while he was under the “guardianship of treaties” of the United States, indeed while he was “performing,
under the sanction of the chief magistrate of the union
, those duties which the humane policy adopted by congress had recommended.” Perhaps President Jackson would get this hint. Perhaps he would understand that his own authority and the authority of the entire federal government were at stake.
¹⁵

Justice Joseph Story, Marshall’s colleague, felt relief. He wrote to his wife, “Thanks be to God, the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights.” A few days later, he wrote to another correspondent: “The Court has done its duty. Let the Nation now do theirs.” But he added, “Georgia is full of anger and violence.… Probably she will resist … and if she does, I do not believe the President will interfere.”
¹⁶

Story was correct. On March 5, 1832, the Court issued an order requiring Georgia to release Worcester. Shortly thereafter, when Worcester’s lawyers asked the state judge to release him, the judge refused. The governor then told the state legislature that he would meet the Supreme Court’s “usurpation of Federal power with the most prompt and determined resistance.”
¹⁷

The president also refused to help enforce the Supreme Court’s decision. On the contrary, Jackson’s secretary of war stated that the president, “on mature consideration,” believed that state legislatures have the “power to extend their laws over all persons [that is, Indian tribes included] living within their boundaries.” Consequently, the president, he said, has “no authority to interfere” in Georgia’s dealings with Samuel Worcester. Furthermore, in Jackson’s view the president
and the Congress had as much authority “to decide upon the constitutionality” of statutes as do “the supreme judges,” who, he added, “must not … be permitted to control the Congress, or the Executive, when acting in their legislative capacities.” The
New York Daily Advertiser
told its readers that the president “has said … that he ha[s] as good a right to order the Supreme Court as the Court ha[s] to require him to execute its decisions.” And popular wisdom attributed to Jackson the famous phrase “Well, John Marshall has made his decision, now let him enforce it.” As Worcester languished in jail, John Marshall wrote to Joseph Story, “I yield slowly and reluctantly to the conviction that our Constitution cannot last.”
¹⁸

Marshall obviously feared the power of example. If the states could ignore the Court’s decision favoring the Indians, why could they not similarly ignore others they did not like? Why should states or their citizens follow federal law at all? Why pay federal taxes? Why enforce federal customs law? Indeed, only a few months after the
Worcester
decision, South Carolina published a “Nullification Ordinance.” This ordinance made it unlawful to pay (within South Carolina) any duties imposed by certain federal statutes. It required all state courts to follow state, not federal, law in these matters; it forbade taking an appeal to the Supreme Court and punished with contempt of court anyone who tried to do so.
¹⁹

Suddenly Jackson understood the political power of Georgia’s example. Many in the South had long thought that states need not follow federal laws with which they disagreed. But Jackson as president now saw the threat to the Constitution posed by such a theory. If states could nullify federal law willy-nilly, then the Union might well become not the federation that the Constitution foresaw but a voluntary, and perhaps temporary, association of independent states.

Seeing the folly of his earlier position, Jackson reversed course. On December 10, 1832, he issued a statement: “I consider … the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union.” Then he acted. Allying himself with Daniel Webster, a strong opponent of the nullification principle, he secured enactment of the Force Bill. This new federal statute explicitly gave the president the legal authority to use federal troops to enforce
federal law. Its sponsors had South Carolina in mind. And South Carolina, understanding this, gave in to the threat of force. It repealed its Nullification Ordinance.
²⁰

Just as Georgia’s example affected South Carolina, so the South Carolina example affected Worcester. The general public understood the need for similar treatment of similar instances as a universal tenet of the rule of law. The newspapers wrote that “no person but a Jackson or Van Buren man can see any essential difference between the case of Georgia and South Carolina.” Wirt filed papers to take Worcester’s case back to the Supreme Court for a further order, and Jackson, hinting at the use of troops, said he would enforce that order. Georgia saw what had happened in South Carolina and began to look for a settlement. The governor offered a pardon. The Board of Foreign Missions, Worcester’s employer, urged Worcester to accept the pardon and withdraw the motion pending before the Supreme Court. Worcester did so, and in January 1833 he was released from prison. Thus, the Court’s order ultimately was enforced. Or was it?
²¹

Wasn’t the original point of Wirt’s judicial effort to secure legal protection for the Cherokee tribe? Didn’t the Court’s decision explicitly state that Georgia could not seize the Cherokees’ land, that the land belonged to the tribe, not to Georgia? What happened to the Cherokees’ effort to keep their land?

That effort failed. President Jackson sent federal troops to Georgia, not to enforce the Court’s decision, but to evict the Indians. In early 1835, without the authorization of Chief Ross and the Cherokee government, federal representatives arranged for a handful of the tribe’s members to meet in Washington to negotiate a treaty. There they reached an agreement providing for the removal of the tribe to the West. Jackson proclaimed victory.
²²

Horrified, the remaining seventeen thousand members of the tribe—including Chief Ross and the Cherokee government—immediately protested, but it was too late. Jackson submitted the “treaty” to the Senate, which ratified it by a one-vote margin. The secretary of war then informed Chief Ross that the “President had ceased to recognize” his government. And Jackson’s federal troops ensured the Cherokees’ removal. General John Ellis Wool, in command of the federal troops,
wrote to his superiors in Washington that the Cherokees were “almost universally opposed to the Treaty.” He reported that the great majority of the tribe were “so determined … in their opposition” that they had refused to “receive either rations or clothing from the United States lest they might compromise themselves in regard to the treaty,” they “preferred living upon the roots and sap of trees rather than receive provisions” from the federal government, “thousands … had no other food for weeks,” and many “said they will die before they leave the country.”
²³

But Jackson ordered Wool to enforce the treaty. Jackson forbade the Cherokees to assemble to discuss the treaty, and he ordered Wool to show his letter to Chief Ross, after which he was to have no further written or oral communication with Ross on the subject.
²⁴

Wool obeyed. He described the subsequent scene as “heartrending,” adding that, were it up to him, he “would remove every Indian tomorrow beyond the reach of the white men who, like vultures, are watching, ready to pounce upon their prey and strip them of everything they have.” “Yes sir,” he later said, “ninety-nine out of every hundred” of the Cherokees “will go penniless to the West.” And that they did. Their route, called the Trail of Tears because so many died, led them to Oklahoma, where descendants of the survivors live to this day.
²⁵

This sad story has a few positive aspects. Despite the tragic outcome, it helped establish a principle—namely, that like cases need to be treated alike. The perceived unfairness of treating similar cases differently led to press articles demanding Worcester’s release. The case also underlined the importance of the Supreme Court’s power to strike down state laws that are inconsistent with the Constitution or treaties or federal statutes. South Carolina’s ordinance made clear, even to President Jackson, the threat that “nullification” posed to national union.

Still, the predominant lesson the story tells us is not a happy one. A president used his power to undermine a Court decision and to drive the Cherokees from their native land. Moreover, Story’s and Marshall’s concerns about injury to the Court were well-founded. As far as the Court was concerned, the popular account of Jackson’s attitude revealed the Court’s weakness. The chief justice “has made his decision, now let him enforce it.” Georgia was prepared to hang anyone who
entered that state to enforce the Supreme Court decision. The president of the United States saw no problem with Georgia’s attitude—at least not initially—and he ended up subverting the Court’s basic holding. Would the president, the Congress, the states, and the public enforce, support, and follow a truly unpopular Court decision? The case suggests a strong likelihood that they would not.

I
N ANY EVENT
, during the next half century the Court, perhaps aware of its limitations, did not meaningfully test its power of judicial review. The next great constitutional confrontation after
Marbury
took place in 1857, when the Court decided the infamous
Dred Scott
case, to which we now turn.

I
N THE
D
RED
S
COTT
decision, the Court held that a former slave
was not
a citizen entitled to sue in federal court, and it held that a slave could
not become
free simply because his owner took him into a free state or territory. In the process the Court also held, for the first time since
Marbury
, that a federal statute (in this case the Missouri Compromise) was unconstitutional. When the Court decided the case in 1857, the country was deeply divided over slavery and on the brink of civil war. Given the timing and political circumstances, one could wonder whether the country would have implemented the
Dred Scott
decision had war not broken out.
¹

We should be aware that the
Dred Scott
decision has long been considered one of the Court’s worst. It may well have helped to bring about a war, which was the very political result it hoped to avoid. As an example of judicial review, it is the opposite of the kind of Constitution-protecting review that Hamilton hoped the Court would undertake. What went wrong? The decision was unworkable and unenforceable because the Court itself made a legal and practical mistake. In other words, in this case the Court, not the president, Congress, or the general public, deterred Americans from following the law.

D
RED
S
COTT WAS
born a slave on a Virginia plantation around 1800. His first owner, Peter Blow, took him to St. Louis, Missouri, where he
sold him to an army doctor, John Emerson. Emerson took Scott with him from base to base, including Fort Armstrong in the free state of Illinois and Fort Snelling in the free territory of Wisconsin (now in the state of Minnesota). During his two-year stay at Fort Snelling, Scott married Harriet, a slave who also lived there. Emerson then returned to St. Louis with Scott, Harriet, and their newly born child, Eliza. After Emerson died, Scott and his family became the property of Emerson’s wife and, eventually, of his wife’s brother, John Sanford. Scott, or perhaps Harriet, was not satisfied with this arrangement, so the couple brought a lawsuit, first in state court, then in federal court. They argued that their lengthy stay in free territory had made Scott legally a free man.
²

Roger Taney, chief justice of the United States, wrote the majority opinion in the
Dred Scott
case. Taney was born in Maryland in 1777 to a family of tobacco farmers. A longtime supporter of Andrew Jackson, he became attorney general in the Jackson administration and was appointed chief justice in 1836. He was an excellent lawyer, possessing what William Wirt (who had represented the Cherokees) called a “moonlight mind,” a mind that gave “all the light of day without its glare.” Taney had argued for a gradual end to slavery, an institution he viewed as “evil” and a “blot on our national character.” He had represented abolitionists and had freed most of his own slaves. On the other hand, as attorney general, Taney had advised the secretary of state that the “African race … even when free … hold whatever rights they enjoy” at the “mercy” of the “white population.”
³

Benjamin Curtis wrote the main dissent in
Dred Scott
. Curtis was a native of Massachusetts whom President Millard Fillmore had appointed to the Supreme Court in 1851 partly because of his reputation as a “moderate” on the slavery issue. He served on the Court only six years, resigning after the
Dred Scott
decision, saying that he doubted his usefulness on the Court in its “present state” (and perhaps for financial reasons as well).
⁴