Supreme Court’s power over states was slow to develop

Written by William C. Duncan

November 12, 2021

A recent post here referenced Chief Justice John Marshall’s 1832 opinion in Worcester v. Georgia, which held the state of Georgia could not force its laws on the sovereign Cherokee Nation. After the decision, Marshall’s colleague Joseph Story wrote 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 case prior to Worcester had at least implied Cherokee land rights could be ignored by Georgia. One Marshall biographer suggests that the Worcester v. Georgia decision was intended at least in part to right this wrong.

The case whose implications Marshall intended to correct was Fletcher v. Peck. The case involved a land grant made by the state of Georgia which was almost surely the result of legislative corruption. In fact, the grant was made in 1795 but voided by the legislature in 1796. John Peck, one of the men who received land under the initial grant, sold it to Robert Fletcher after the legislature had declared the original grant invalid, so the Supreme Court was asked to determine if the sale to Fletcher was valid.

The court ruled that Georgia’s invalidation of the grant violated Article I, Section 10 of the U.S. Constitution, which prohibits states from passing laws “impairing the obligation of contracts.” This was the argument advanced by future president John Quincy Adams, who represented Peck.

Aside from the details of the case, the Fletcher ruling was significant as the first Supreme Court decision to invalidate a state law on constitutional grounds.

The court made sparing use of that power, though, in the next few years. Prior to the Civil War, the court struck down less than 30 state laws. (A future post will describe the growth of that power from the small beginning.)

The subsequent history of the Worcester decision indicates why this power was not initially as significant as it has become in more modern times.

Shortly after the decision, President Andrew Jackson expressed his opinion that the opinion was “still born” because the court could not enforce its mandate. The Georgia court refused to release the prisoners who had brought the lawsuit, even though the Supreme Court had concluded they had violated no law. The governor publicly vowed to resist the court’s decision, although he eventually freed the men from prison (but did not pardon them). Ultimately political considerations, not the court’s authority, motivated the outcome the court had ordered.

Tragically, the court’s recognition of the sovereignty of the Nation was mooted by state and federal officials’ determination to forcibly remove the Cherokee from their lands. This culminated in the Trail of Tears that sent the Cherokee to “Indian Territory” in Oklahoma.

It would take some time before the court’s power to invalidate state laws on constitutional grounds would become secure enough to command the respect it has today. In contrast with rulings like Worcester, even Supreme Court decisions to which states strenuously object, like Roe v. Wade, are still enforced by states, and they consider themselves obligated to seek reconsideration of those decisions rather than ignoring them.

This was not always the case. But the health of our democracy and civic infrastructure have grown such that things higher than simple political calculation – such as respect for the law and ordered liberty – have taken root as the motivating political principles when it comes to enforcement of Supreme Court decisions.

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