In regard to the taxation question, the answer followed naturally: the states might tax their own citizens, but “the only security against the abuse of this power, is found in the structure of the government itself.” As Newmyer put it, “[T]he state legislature may tax only its own constituents, and by the same principle is prohibited from taxing citizens of other states and citizens of the United States.… the legislature of Maryland could not tax the Bank of the United States because the bank was created by Congress, which represented all the people of all the states.”

  Perhaps, as John Marshall said in McCulloch, the American people “did not design to make their government dependent on the states,” but from Virginia would come the argument that they did not design to make the states dependent on the Federal Government either. Judge Spencer Roane told a friend that because Alexander Hamilton’s bank had existed for twenty years, “factum valet fiery non debet [that thing that should not be done, but is done, is valid] forcibly applies.” (According to President Monroe, this was Jefferson’s and Madison’s position as well.)15 Marshall went much further than that, however, laying out a very broad justification of claims of implied powers of Congress. The ascendant clique in Richmond, Judge Spencer Roane at its head, would not let that pass.16

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  Within months the Virginia General Assembly protested the Supreme Court’s performance, insisting that the court’s broad reading of congressional powers was “eminently calculated to undermine the pillars of the Constitution itself, and to sap the foundations and rights of the State Governments,” and once-and-future senator John Taylor of Caroline began work on his topical book Construction Construed, and Constitutions Vindicated.1 Taylor, the chief Jeffersonian penman/theorist of the 1790s, castigated the Supreme Court for its opinion in McCulloch v. Maryland. Since the Supreme Court had allowed the Federal Government unlimited means, Taylor said, the Federal Government would soon be able to pursue whatever ends it wished—thus essentially destroying “the equalities of ends plainly established by the constitution.” Taylor saw “an emerging capitalist class gaining special privileges for itself from the central government.” He also insisted, as his foremost biographer explains, that “the ‘new notion of a constitution by implication’ was ‘exactly like no constitution at all.’” The gist of Taylor’s quarrel with John Marshall (and Joseph Story) was to be found in Taylor’s objection to the Supreme Court’s idea of the “convenience or necessity of uniformity,” the advocacy of which by the judges Taylor analogized to Archbishop Laud’s endeavor to impose religious uniformity in England during the reign of Charles I. (Taylor’s readers would have known that this precipitated the English Civil War.) In other words, as the Supreme Court worked to homogenize the United States, Taylor stood athwart history, yelling, “Stop!”

  Perhaps the most significant immediate Virginian response to McCulloch, however, was that the first of two series of anti-McCulloch essays began appearing in the Richmond Enquirer. That series, under the pen name “Amphictyon,” was in the making when, a week after his court issued its opinion, the chief justice got home to Richmond. He soon wrote to brother Justice Story, “Our opinion in the Bank has roused the sleeping spirit of Virginia—if indeed it ever sleeps.” The attack would be characterized by “asperity.”2 To Justice Bushrod Washington, nephew of the general, Marshall confided that “We shall be denounced bitterly in the papers, & as not a word will be said on the other side we shall undoubtedly be condemned as a pack of consolidating aristocratics.” Not the case’s result but the judges’ latitudinarian reasoning would be the target, as the Richmond Junto generally supported the case’s outcome. The judges were to be castigated for “our heretical reasoning,” which “is pronounced most damnable.” The Supreme Court alone would be the target, not the president or Congress, as the latter “have power & places to bestow,” and thus “will escape with impunity.” The justices, on the other hand, “have nothing to give & … nobody is afraid” of them, so they alone would have to absorb the criticism.3

  Editor Thomas Ritchie’s introduction to the first Amphictyon essay included a vow that “Whenever state rights are threatened or invaded, Virginia will not be the last to sound the tocsin” and the statement that “We cannot too earnestly press upon our readers, the following exposition of the alarming errors of the Supreme Court of the United States in their late interpretation of the Constitution.” The essay by Virginia General Court Judge William Brockenbrough, another connection of Judge Roane and editor Ritchie, begins with lamentation of the judges’ having joined in one opinion without saying whether they all agreed in every bit of its reasoning. It then avers that “[t]here are two principles advocated and decided on by the supreme court, which appear to me to endanger the very existence of state rights. The first is the denial that the powers of the federal government were delegated by the states; and the second is, that the grant of powers to that government, and particularly the grant of powers ‘necessary and proper’ to carry the other powers into effect, ought to be construed in a liberal, rather than a restricted sense. Both of these principles,” Amphyictyon concludes, “tend directly to consolidation of the states.…” If Congress exercised all of the power thus granted it, “it is difficult to say how small would be the remnant of power left in the hands of the state authorities.”

  Amphictyon makes short work of Marshall’s claim that the states did not delegate the Federal Government its powers, first noting that answering this question was not necessary to the resolution of the case, so that the court’s answer is “not more binding or obligatory than the opinion of any other six intelligent members of the community,” then adding that “[t]he opinion is erroneous. The several states did delegate to the federal government its powers, and they are parties to the compact.” If the powers of the government came from “the people,” then the whole people would have been bound as soon as a majority had consented. Everyone knew that “[t]he constitution was not binding on any state, even the smallest, without its own free and voluntary consent.” The states’ ongoing existence of course was also the basis, for example, of elections to the House of Representatives. For good measure, he cited (Hamilton’s) Federalist #28 and the Virginia Report of 1798 (aka “Madison’s Report”).

  Amphictyon’s second letter discussed the hermeneutical approach the Supreme Court said it would follow.4 The essay’s key point is that “[t]he consequences of giving an enlarged, or what is called a liberal construction to the grant of powers, are alarming to the states and the people.” That the Necessary and Proper Clause would be abused in this way—“construed into an unlimited commission to exercise every power, which might be alleged to be necessary to the general welfare”—“its opponents foretold” “whilst the constitution was under discussion.” The result would be essentially limitless power in Congress. As we shall see, former president James Madison’s evaluation of Marshall’s opinion was very similar on this last point.

  Chief Judge Roane wrote four Richmond Enquirer essays about McCulloch v. Maryland under the penname “Hampden”—a name recalling one of the foremost Parliamentary leaders in the English Civil War. Roane said in his first essay, “It has been the happiness of the American people to be connected together in a confederated republic” in which the government “possessed only such [powers] as were expressly granted, or passed therewith as necessary incidents” and the states retained “all the residuary powers.”5 Here Roane brandished his familiarity with the record of the Virginian Ratification Convention of 1788, in which Governor Edmund Randolph, a prominent Philadelphia Convention Framer and Virginia Ratification Convention Federalist, repeatedly responded to Patrick Henry’s forecasts that the Necessary and Proper Clause would be read by federal officials as the Supreme Court in the event had read it in McCulloch by saying the new government would have only the powers “expressly granted.” To be doubly certain the constitution was understood this way, Roane continued, the Tenth Amendment reiterated the point.6

  Roane next made the 1816 Bank Bill and the 1798 Sedition Act fellow manifestations of the “proneness of all men … to feel power and forget right.” Marshall’s court, unlike Congress, had to answer to no one, and so had undertaken in McCulloch to give Congress unlimited means to exercise limited powers. “That man must be a deplorable idiot who does not see that there is no earthly difference between an unlimited grant of power,” he wrote, “and a grant limited in its terms, but accompanied with unlimited means of carrying it into execution.” While the Necessary and Proper Clause seemed to Roane to be a limitation of Congress’s power, the justices had “expunged those words from the Constitution … [by] reading them in a sense entirely arbitrary with the reader.” Again alluding to history familiar to all learned Americans—certainly all learned Virginians—of his day, Roane said that if this constitutional language were read as Marshall’s court here construed it, “[i]f the limits imposed on the general government … are stricken off, they have, literally, the power to legislate for us in all cases whatsoever.” Here Roane echoed the British Parliament’s Declaratory Act of 1766, in which it claimed power to legislate for the colonists “in all cases whatsoever”—which was the very definition of despotism. Once Parliament had responded to the Virginia legislative resolutions of 1765 that made Patrick Henry famous by claiming a right to legislate for the Old Dominion “in all cases whatsoever,” all that stood between the colonists and declaring independence was time.

  In the balance of his performance as Hampden, Roane showed that Marshall and company were turning the U.S. Constitution into “a nose of wax … stretched and contradicted at the arbitrary will and pleasure of those who are entrusted to administer it.” In the end this would mean interpretations “by those who, possessing power, will not fail to ‘feel it, and forget right.’” He then, as his biographer put it, “cited Madison, Edmund Randolph, Richard Henry Lee, the Federalist Papers, the Virginia Resolution of 1799, and his own opinion in Hunter v. Fairfax in support of the proposition ‘that in the case of an infraction of the constitution, the states have a right to interpose and arrest the progress of the evil.’ If that right was ever denied, ‘the principle on which our independence was established would be violated.’”

  Roane sent a copy of his essays to Thomas Jefferson with a letter saying, “The friends of liberty in our Country continue to regard you with veneration and gratitude, for your great & Eminent services:—and your opinion on such a question as this, would be considered as a great authority.”7 The Sage of Monticello, never averse to being complimented, sent the judge a lengthy letter of praise in response—one in which he coined a memorable Jeffersonian phrase.8

  “I had read in the Enquirer,” he began, “and with great approbation the pieces signed Hampden, and have read them again with redoubled approbation in the copies you have been so kind as to send me. I subscribe to every tittle of them. they contain the true principles of the revolution of 1800. for that was as real a revolution in the principles of our government as that of 76. was in it’s form; not effected indeed by the sword, as that, but by the rational and peaceable instrument of reform, the suffrage of the people.”

  However, Jefferson thought he saw that the Federalists perhaps had not been vanquished permanently. “[T]he nation declared it’s will,” he continued, “by dismissing functionaries of one principle, and electing those of another, in the two branches, executive and legislative, submitted to their election. over the judiciary department,” alas, “the constitution had deprived them of their controul. that therefore has continued the reprobated system.…” One might have thought that new Supreme Court appointments would have transformed the high tribunal, but no: “altho’ new matter has been occasionally incorporated into the old, yet the leaven of the old mass seems to assimilate itself to the new; and after 20. years confirmation of the federated system by the voice of the nation, declared thro’ the medium of elections, we find the judiciary o[n] [e]v[ery] occasion, still driving us into consolidation.”

  The Republicans’ guiding light did not agree with Roane’s essays completely, he hastened to add. “[I]n denying the right they usurp of exclusively explaining the consti[tu]tion[,] I go further than you do, if I understand rightly your quotation … of an opinion that ‘the judiciary is the last resort in relation to the other depart[ments] of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.’” (Here Jefferson referred to the U.S. Constitution.) If that principle were granted, “then indeed is our constitution a complete felo de se. for intending to establish three departments, coordinate and independant, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others; and to that one too which is unelected by, and independent of, the nation. for experience [(the Chase impeachment acquittal)] has already shown that the impeachment it has provided is not even a scare-crow.…” Marshall and his colleagues, Jefferson noted, had come into the habit of casting out theoretical opinions such as McCulloch “not belonging to the case often, but sought for out of it, as if to rally the public opinion beforehand to their views, and to indicate the line they are to walk in,” without drawing any criticism at all in the House of Representatives—the body with impeachment power. As a result, “the constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.” He added that any independent power was absolute.

  Jefferson closed by insisting that “each department is truly independent of the others” in interpreting the constitution in cases properly before it, “and especially where it is to act ultimately and without appeal.” He gave the examples of his pardons of Sedition Act convicts, his withholding of Marbury’s commission—which despite the Supreme Court’s decision he deemed incomplete because delivery was “essential to compleat a deed”—and his decision not to submit the Monroe-Pinkney Treaty to the Senate for its ratification, as he thought he could decide not to “confirm” a treaty without involving the Senate. There were also the (perhaps partisan) decisions of a federal judge and the U.S. House of Representatives about the citizenship status of a Republican (judged not a citizen) and a Federalist (deemed a citizen) in similar circumstances “during the federal ascendancy.”

  As for Roane’s implication that Jefferson should take a public stand concerning McCulloch, Jefferson said no, he wanted to avoid that. Doing so might undercut support for his ongoing attempt to establish a new public university in the Old Dominion. He did, however, close by saying, “I hope your labors will be long continued…, in maintenance of those principles on which I verily believe the future happiness of our country essentially depends,” followed by conveyance of “affectionate and great respect.”9

  The letter covering the set of the Hampden essays Roane sent the other Virginian ex-president included the observation that “[n]o man in our Country has done so much as you, in Establishing our present happy system of government, or can feel greater interest in preserving it.”10 The judge knew his mark, and soon enough, a lengthy, thoughtful answer made its way to him from Orange County.11

  As Madison had called on Congress to create the Second Bank of the United States and signed the legislation doing so into law, Chief Justice Marshall might have thought the Virginian Publius would sympathize with his effort. He would have been mistaken. Referring to Marshall’s reading as “latitudinary,” Madison said, “It appears to me as it does to you, that the occasion did not call for the general & abstract doctrine interwoven with the decision on the particular case.” Like his friend in Albemarle, the fourth president said that rather than laying out a general theory of constitutional legislation under the Necessary and Proper Clause, Marshall ought to have confined himself to the facts at hand. “I have always supposed,” Madison said, “that the meaning of a law, and for a like reason, of a Constitution, so far as it depends on Judicial interpretation, was to result from a course of particular decisions, and not these, from a previous and abstract comment on the subject.” Marshall had instead “reverse[d] the rule, and … forego[ne] the illustration to be derived from a series of cases actually occurring for adjudication.” Madison also would have preferred seriatim opinions instead of all of the other justices’ silently joining in Marshall’s, as the latter meant the public did not know how much force to allow the opinion.

  “But what is of most importance,” he continued, “is the high sanction given to a latitude in expounding the Constitution, which seems to break down the landmarks intended by a specification of the powers of Congress; and to substitute for a definite connection between means and ends, a legislative discretion as to the former, to which no practical limit can be assigned.” Exasperated, he asked, “Is there a Legislative power, in fact, not expressly prohibited by the Constitution, which might not, according to the doctrine of the Court, be exercised as a means of carrying into effect some specified power[?]” In fact, “Does not the Court also relinquish, by their doctrine, all controul on the Legislative exercise of unconstitutional powers? According to that doctrine, the expediency & constitutionality of means for carrying into effect a specified power, are convertible terms; and Congress are admitted to be the judges of the expediency. The Court certainly can not be so; a question, the moment it assumes the character of mere expediency or policy, being evidently beyond the reach of Judicial cognizance.” He then gave as a hypothetical example the practice under the French ancien régime of granting monopolies to particular favorites. Doing that would be unconstitutional, Madison reasoned, but now Congress could say this was a means to the end of borrowing money, and voilà! It would be constitutional under the reasoning in McCulloch.