Nullification, Secession, Webster's Argument, and the Kentucky and Virginia Resolutions: Considered in Reference to the Constitution and HistoricallyLoring, Caleb William
History
Nullification, Secession, Webster's Argument, and the Kentucky and Virginia Resolutions: Considered in Reference to the Constitution and Historically
Loring, Caleb William
Nullification (States' rights); Secession
The case came before the full bench of the Supreme Court, and was argued
for the plaintiff by Edmund Randolph, then Attorney-General, the
prominent member of the general convention and that of Virginia, who
stated his opinion strongly against this claim of Georgia. The decision
was against Georgia; Blair and Wilson, who were members of the
convention that made the Constitution, the Chief-Justice Jay, and
Cushing giving fully reasoned opinions. Iredell, a member of the North
Carolina Convention, gave a dissenting opinion; it was not because he
held that Georgia was a sovereign State as generally stated. He said as
to sovereignty: “The United States are sovereign as to all the powers of
government actually surrendered; each State in the Union is sovereign as
to all the powers reserved.” This same doctrine, as to the sovereignty
of a State in unsurrendered powers, was held by Marshall.[60]
[60] Providence Bank _vs._ Billings, 4 Peters, 514.
The reason of Iredell’s dissent was that before the adoption of the
Constitution a State could not be sued; that no suit now could be
brought against a State, because Congress had not made a law providing
for it. Further, he intimated it was not intended by the Constitution to
give the right of a compulsory suit against a State. As to the
sovereignty of the United States in the powers conferred to it, the
court was unanimous.
In the same suit, Jay and Cushing maintained that the United States
cannot be sued, a dictum since followed, though the Constitution gives
jurisdiction to the courts where the United States are a party.
At this time all the States were greatly indebted and many suits were
instituted against them, the United States Courts maintaining their
jurisdiction over the States. The alarm was general, and to quiet the
apprehension that was so extensively entertained, an amendment, taking
from the United States judicial power in suits against a State, was
adopted in Congress and afterwards ratified by the State Legislatures in
1798. That its motive was not to maintain the sovereignty of a State
from the degradation supposed to attend a compulsory appearance before
the tribunal of the nation may be inferred from the terms of the
amendment. It left jurisdiction to the United States of controversies to
which the United States shall be a party, of controversies between two
or more States, between citizens of different States, between citizens
of the same State claiming under grants of different States.[61]
[61] Chief-Justice Marshall’s remarks in Cohens _vs._ Virginia, 6
Wallace, 264.
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