Spencer Roane: The Marshall Court’s Greatest Foe

Spencer Roane 1762-1822

Spencer Roane (1762-1822)

When Thomas Jefferson won the 1800 presidential election, Republicans hoped that he would finally be able to dislodge the Federalist’s near decade-long control of the Supreme Court. Ailing Chief Justice Oliver Ellsworth resigned that fall, and John Jay declined the outgoing president John Adam’s nomination. This meant that unless Adams acted quickly, Jefferson would be able to nominate his favorite for the position: Spencer Roane, a Republican judge serving on the Virginia Court of Appeals and a passionate supporter of state’s rights.

But a mere two months before Jefferson was sworn into office, Adams rushed to nominate his Secretary of State, John Marshall. The Federalist controlled senate delayed confirming the nomination, worried that Marshall might not be the most qualified candidate for the position. However, with time running out, Marshall was finally installed in the Supreme Court. One can only imagine how different the history of the young nation would have been if Spencer Roane had been appointed Chief Justice instead of John Marshall. The Virginia judge would become one of the Constitution’s staunchest defenders and the Marshall Court’s greatest opponent, publicly debating the Chief Justice and crusading against Marshall’s push towards a strong, centralized government.

Born in Tappahannock, Virginia in 1762, Spencer Roane grew up in a climate of political unrest. His father, William Roane, was a wealthy planter who served on the Virginia House of Burgesses along with such other famous figures as George Washington, Thomas Jefferson, Richard Henry Lee, and Patrick Henry. By 1766, William had become a member of the Sons of Liberty and was one of the signers of the Leedstown Resolutions drawn up to protest the Stamp Act. Spencer Roane shared his father’s patriotic fervor and was especially stirred by Patrick Henry’s fiery speeches defending liberty. Long after the war, the young Roane would remember volunteering at the age of thirteen, “armed with a short carbine and tomahawk, and clothed in a hunting shirt with the words ‘Liberty or Death’ engraved in capitals over my left breast.” Years later, he would marry Patrick Henry’s daughter, Anne.

In 1780, Roane graduated from the College of William and Mary where he studied law under George Wythe along with fellow classmate John Marshall. Two years later, he was admitted to the bar and by 1795 had risen to the Virginia Court of Appeals. Around this time, he became a founding member of a political organization known as the Richmond Junto: a group that held considerable sway over Virginia party politics from about 1800 to 1824.

Firmly Jeffersonian in tone, the junto was outspoken against Hamiltonian positions such as a central bank, internal improvements, and tariffs. Roane’s cousin and fellow junto member, Thomas Ritchie, operated a newspaper called The Richmond Enquirer that served as the junto’s mouthpiece. Thomas Jefferson once remarked, “I read but a single newspaper, Ritchie’s Enquirer, the best that is published or ever has been published in America.” It would be in the pages of the Enquirer that Roane would battle with his former classmate over the nature of the United States Constitution and the fate of the nation itself.

John Marshall 1755 – 1835
John Marshall (1755 – 1835)

When Marshall assumed the office of Chief Justice, he lost no time in revolutionizing the power of the Supreme Court. With the Marbury vs. Madison ruling in 1803, Marshall judged an act of Congress unconstitutional, and thus established the Supreme Court’s power of judicial review. In a letter to Roane in 1819, Jefferson lamented that the landmark decision had turned the Constitution into a “thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” That very year on March 6, John Marshall expanded the power of the federal government even further with his ruling in McCulloch vs. Maryland.

second_bank_of_the_us1323199243360The case concerned a tax that the state of Maryland had levied against The Second Bank of the United States. Established in 1816, this second bank was an attempt to revive the First Bank of the United States whose charter had expired five years before. However, the new national bank met with resistance from many states who saw it as unwelcome competition with their own state banks. The Jeffersonians argued that Congress lacked the constitutional authority to charter the bank. Essentially, the tax imposed by Maryland was an effort to force the bank to close. James McCulloch, the cashier of the Baltimore branch, refused to pay the tax.

The Maryland Appellate Court ruled in favor of Maryland, stating that the Constitution is “silent on the subject of banks.” Further, they argued that as a sovereign state, Maryland had full authority to impose a tax on any business within her borders, regardless if the Federal Government had established the business or not.

The case was then appealed to the Supreme Court where John Marshall overturned the ruling of the appellate court. Invoking the Constitution’s Necessary and Proper Clause, he reasoned that even though the Constitution does not specifically grant Congress the power to incorporate a bank, such a power can be considered necessary in order for Congress to carry out its enumerated power of taxation. Marshall argued, “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Ultimately, according to Marshall, the Constitution was merely an outline; it did not need to stipulate every single means available to Congress for carrying out its enumerated powers.

This stance was clearly in opposition to the Jeffersonians who interpreted the Necessary and Proper clause as restricting rather than enlarging the powers of Congress. Marshall’s interpretation of the Constitution was alarmingly broad, empowering Congress to determine whatever implied powers it deemed appropriate for carrying out its enumerated powers. Such a line of reasoning would ultimately strip the states of all power. Though many had expected the Supreme Court to rule in favor of the National Bank, Marshall’s opinion went a step further in completely transforming the supremacy of the federal government. The Virginians refused to remain silent.

The Richmond Junto launched their attack on March 23. Thomas Ritchie published a copy of Marshall’s ruling in The Richmond Enquirer along with his own editorial in which he demanded that the ruling be “controverted and exposed.” A week later he published the first of two essays by William Brockenbrough, another member of the junto and a judge on the Virginia Court of Appeals.

When the essays appeared, John Marshall was furious, believing they not only ridiculed his own reasoning but also the power of the Supreme Court. “Our opinion in the Bank has roused the sleeping spirit of Virginia—if indeed it ever sleeps,” he wrote to fellow Supreme Court justice Joseph Story. Marshall decided to respond to the attack with his own essay published in The Philadelphia Union. Wishing to remain anonymous, he wrote under the nom de plume “A Friend to the Union.” However, even Marshall admitted that his writing was unintelligible. He accused the paper of misprinting his essay and was forced to reveal his authorship by having it republished in two different newspapers with his corrections. It was the first and possibly the last time in history a Supreme Court Chief Justice has publicly defended his ruling in the press.

The Virginias turned to the one man they knew could match wits with the Chief Justice: Spencer Roane. Jefferson later wrote, “I know no one who, equally with Judge Roane himself, possesses the power and the courage to make resistance; and to him I look, and have long looked, as our strongest bulwark.”

Roane sprang into action with four essays published that June and written under the name “Hampden” in which he systematically refuted each of Marshall’s arguments and eloquently defended the sovereignty of the states against the encroachment of the federal government. “My opinion is, that the Supreme Court had no jurisdiction justifying the judgment which it gave, and that it decided the question wrongly,” he declared. “The power of the Supreme Court is indeed great, but…it is not great enough to change the Constitution…The crisis is one which portends destruction to the liberties of the American people.”

Drawing on arguments made in the Virginia and Kentucky Resolutions, Roane argued that the Constitution was a contract between the states; its purpose was to “convey only a limited grant of powers to the general government,” and the words “necessary and proper” had only been used for “greater caution” in limiting those powers. He observed, “If the limits imposed on the general government, by the Constitution, are stricken off, they have, literally, the power to legislate for us ‘in all cases whatsoever’; and then we may bid a last adieu to the State governments.” This had been the great fear of the Anti-Federalists since Patrick Henry. If Marshall’s decision became entrenched in the American political system, the state would become impotent to check the consolidation of centralized power by the federal government.

Marshall responded to Roane’s essays with nine of his own written under the name “A Friend of the Constitution.” These essays did not contain the depth of reasoning found in Roane’s essays and appeared to be a mere repetition of his arguments from the McCulloch decision. However, despite the eloquence and cogency of Roane’s arguments in the Hampden essays, Roane lamented the fact that his writing might fall on deaf ears. In his first essay, Roane observed, “I must say to my fellow citizens that they are sunk in apathy, and that a torpor has fallen upon them.” Yet, Roane would not allow this to thwart his efforts. He was determined that liberty would not perish from among the American people for a lack of understanding. He refused to withdraw from the fray because John Marshall also refused to give in.

Indeed, Marshall continued to push the jurisdictional limits of the Supreme Court. With the 1821 Cohens vs. Virginia Decision, he overturned a ruling of the Virginia court, again asserting his opinion that the Supreme Court should have full appellate jurisdiction. Once more Roane responded to Marshall’s decision with a series of essays, this time written under the name “Algernon Sydney.” He also drafted three Constitutional amendments that restricted Congress from enacting laws that were not absolutely necessary for carrying out their enumerated powers and that limited the powers of the Supreme Court in overruling decisions of state courts. However, though approved in the state legislature, these amendments were never proposed in Congress.

Andrew Jackson (1767–1845)
Andrew Jackson (1767–1845)

Though Roane spoke of the apathy of the American people, it seems some of his contemporaries were attentive to his arguments. On July 10, 1832 President Andrew Jackson vetoed a bill to recharter the Second Bank of the United States. He wrote, “I sincerely regret that in the act before me I can perceive none of those modifications of the bank charter which are necessary, in my opinion, to make it compatible with justice, with sound policy, or with the Constitution of our country.”

This was the same bank John Marshall had found to be constitutional in McCulloch v. Maryland. What became of Marshall’s decision? Jackson explained in his veto message, “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” Ultimately, Jackson declared that Marshall’s opinion in McCulloch vs. Maryland was simply that: an opinion. It had no authority to compel the other branches of government. Jackson had significantly rolled back the power of the Supreme Court.

Jackson may have also been influenced by Roane’s arguments in the Hampden essays when he wrote,

It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled.

In Jackson’s opinion, the Supreme Court did not have the final word on questions of constitutionality. There were two more legitimate opinions (those of the people and the States) that the nation had to reckon with. Do away with any, and the liberties of the American people were fated for destruction.

Thus, it appears that Roane’s written opposition kept alive the philosophy of state’s rights and limited government up to 1861. The Civil War, however, may have been the turning point for the nation. Woodrow Wilson observed in his book Constitutional Government in the United States, “The War between the States established . . . this principle, that the federal government is, through its courts, the final judge of its own powers.” Indeed, in light of the last 153 years of Supreme Court decisions, it would seem that Marshall ultimately ended up winning the debate. Today, the strict constructionist interpretation of the Constitution has long since been abandoned. There seems to be no Roanes around to do battle. Or are there?

The writings of men like Spencer Roane, John Taylor and St. George Tucker are readily available for all to read. And their ideas are present in the writings of such men as Murray Rothbard and Frederich Hayek.

In his day, Roane successfully shook the American people out of that apathy. But one man alone could not safeguard liberty forever. Roane understood that the indifference of the American people was just as great a threat to the Constitution as the Marshall Court. Only a citizenry educated in the ideas of liberty, a citizenry who understood the dangers of a strong central government, and who tirelessly took a stand to defend their freedoms would be able to preserve the philosophy of state’s rights and limited government that Spencer Roane had so zealously fought for.

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Learn more about the landmark supreme court case in McCulloch v. Maryland: The Extended Debate. This book presents a collection of source documents as a foundation for understanding the decision. Included is Supreme Court Chief Justice John Marshall’s opinion, briefs from the six arguing attorneys, and selections from Roane and Marshall's debate in the form of letters published in prominent newspapers.

 

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