James Madison’s take on Cohens v. Virginia was characteristically different. Roane wrote to Madison addressing him as author of “the celebrated report, that produced the glorious revolution of 1799. In fact it is believed,” he said, “that this decision has entirely subverted the principles of that revolution.” Republicans generally, Roane insisted, saw “in your pen, which has so often charmed them, and saved the liberties of our country, the only certain antidote, to the ingenious and fatal Sophistries of Marshall.” If he opted not to take up his pen against Marshall’s opinion in Cohens, Madison ought at least to advise Roane on what course to take.4

  Madison answered at some length.5 He began by referring to the “technical points of law” underlying the Supreme Court’s recent opinions as “foreign to my studies,” and “familiar to yours,” on which ground he ordinarily would “be disposed rather to put such a subject … into your hands, than to take it out of them.” Getting to the point, however, he said, “It is to be regretted that the Court is so much in the practice of mingling with the Judgments pronounced, comments & reasonings of a scope beyond them; and that in these there is often an apparent disposition to amplify the authorities of the Union, at the expence of those of the States.” Sounding very much like Roane, the Richmond Junto, and the General Assembly, he said, “It is of great importance, as well as of indispensable obligation, that the constitutional boundary between them should be impartially maintained. Every deviation in practice detracts from the superiority of a chartered [that is, a constitutional] over a traditional Government, and marrs the experiment which is to determine the interesting problem, whether the organization of the political System of the U.S. establishes a just equilibrium, or tends to a preponderance of the national or of the local powers.…”

  Though judicial usurpation could theoretically become problematic, Madison said, “it is less formidable to the reserved sovereignty of the States, than the latitude of power which [the Judicial power of the U.S.] has assigned to the Legislature,” and the threat from the Congress is animated mainly “by a majority of the States seduced by expected advantages.” Because of Congress’s power of impeachment (here he disagreed with Jefferson), “It is not probable that the Supreme Court would be long indulged in a career of usurpation opposed to the decided opinions & policy of the Legislature.”

  As to congressional usurpation, Madison hazarded that the modes of election of members of the two houses “seem to be, in the present stage at least of our political history, an adequate barrier.” He pointed to the states’ success in having “crushed at once” the Alien and Sedition Acts, “notwithstanding the co-operation of the federal Judges with the federal laws.”

  What if Congress, backed by majorities of their constituents, acted as in the recent Missouri controversy or, “as may happen, on the constructive power relating to Roads & Canals?” Only “sound arguments” directed to both their constituents and the members could prevent such behavior “within the pale of the Constitution.” Alluding perhaps to Marshall’s invocation of The Federalist in Cohens v. Virginia, he added, “In expounding the Constitution, the Court seems not insensible that the intention of the parties to it ought to be kept in view; and that as far as the language of the Instrument will permit, this intention ought to be traced in the contemporaneous expositions. But is the Court as prompt and as careful in citing & following this evidence when against the federal authority, as when agst. that of the States?” He also thought it “a peculiar impropriety” to make of “the exclusive jurisdiction over the ten miles square,” which he considered “an anomaly in our representative System … the fulcrum for a Lever stretching into the most distant parts of the Union, and overruling the municipal policy of the States.” So much for Cohens, and for using Publius as authority for Cohens. Congress ought, he said, to exercise its exclusive jurisdiction over Washington and military bases “in the ways as little intrusive as possible on the powers & police of the States.” He also thought it important to distinguish between “legal precedents … such as take place under transitory impressions,” and those “as pass with solemnities & repetitions” seeming to carry public approval. He did not disapprove of all recourse to invocation of constitutional precedents, but he thought legislative ones—especially those from the rushed last hours of congressional sessions—particularly dubious. (Here he no doubt had in mind his communication with President Monroe about congressional funding of road projects.)

  On the matter actually at issue in Cohens, “involuntary submission of the States to the Tribunal of the supreme Court,” he regretted that “the Court seems not to have adverted at all to the expository language held when the Constitution was adopted; nor to that of the 11th. amendment which may as well import that it was declaratory, as that it was restrictive of the meaning of the original text.” He thought it too an odd judicial discovery that states had “less of sovereignty” in controversies with their own citizens “than in controversies with foreign individuals.” He mused that “prudence” should lead federal courts to forebear “taking cognizance of cases arising under the Constitution, and in which the laws or rights of the States may be involved … in consideration of the impracticability of applying coercion to States.”

  A few weeks after this exchange, Roane took up his pen for the Richmond Enquirer and drafted five “Algernon Sidney” essays against Marshall’s work in Cohens. Marshall described these essays to Justice Story as displaying “a degree of virulence transcending what has appeared on any former occasion.” Roane’s biographer calls these essays “eloquent and violent, reasonable and vehement, authoritative and hectoring.” Roane’s goal, he says, was “less to win the legal argument and more to spur a people to action.”6

  “I address you under a solemn conviction that the liberties and constitution of our country are endangered, deeply and vitally endangered, by the fatal effects of that decision,” Roane began, because it “negatives the idea that the American states have a real existence” and finds power in the Supreme Court “to amend the federal constitution at [its] mere will and pleasure.” Though “our general government is a national one as to some purposes, it is a federal one as to others,” and yet the Supreme Court had moved America far down the road toward complete consolidation.

  Roane found Marshall’s focus on the general government’s “supremacy” particularly irksome because wholly false. “A government which is only entrusted with a few powers,” he said, “and is limited in acting upon those powers by the expression of the Constitution … can scarcely be said to be supreme.” He held that “the whole government” and “the people themselves” were not supreme either, as “those great principles which soar above all constitutions and are paramount to the rightful power of the people themselves” bound them.7 Roane concluded by pointing back to the Virginia Ratification Convention, in which his father-in-law’s coadjutor George Mason foretold that the “Ten Miles Square” “might be ‘unquestionably extended by implication to overthrow the rights of the states.’”

  Madison’s response to these essays must have shocked Roane.8 “The Gordian Knot of the Constitution,” he held, “seems to lie in the problem of collisions between the federal & State powers, especially as eventually exercised by their respective tribunals.” While he had always held that the Constitution ought to be read to avoid such problems, “on the abstract question whether the federal, or the State decisions ought to prevail, the sounder policy would yield to the claims of the former.” The Constitution, he reasoned, had been created “by a compact, not between the Government of the U. States, and the State Governments; but between the States as sovereign communities,” with each agreeing some powers would be exercised in common and “all their other authorities” retained by them. “The possibility of disagreements concerning the line of division” between state and federal power “could not escape attention.” If the individual states decided this question each for itself, “the Constitution of the U. States might become different in every State,… and the vital principle of equality which cements their Union, might thus gradually be deprived of its virtue.” If the central government decided this question for all, the problem of equal application would not arise, and the states would maintain control due to their control over “the Trustees” “directly or indirectly.”

  Over time, Madison thought, “successive decisions sanctioned by the public concurrence” would narrow “the room for jarring opinions between the national & State Tribunals,” while selection of better state judges would give state tribunals’ decisions more weight. (Roane must have blanched at this idea.) Already, Madison said, the improvement in the quality of state judiciaries gave them more weight than they had when the Constitution was written. Madison asked rhetorically whether it was too much to expect that as federal and state judges approached each other in talents, integrity, and impartiality they would “vary less & less also in their reasonings and opinions on all Judicial subjects,” so that in the end they would agree where the federal/state line ought to be drawn.

  By the time Cohens was decided, the all-Federalist Supreme Court of 1801 had come to have only two Federalist members: John Marshall and Bushrod Washington, both John Adams appointees. Yet the Court in cases like Martin, McCulloch, and Cohens—not only the holdings but the opinions—continued to dismay leading Republicans with the direction the country’s constitutional law was headed.

  Former president Jefferson at last decided to take an unusual step: he wrote a lengthy letter to his first Supreme Court appointee, Justice William Johnson of South Carolina, on the issue of the Marshall Court’s practice of delivering (usually through the chief justice) one opinion of the court rather than having each judge present his views seriatim (that is, in turn).9 Seriatim opinions had been the custom in England for quite a long time, except in the day of Lord Mansfield, and they had at first been the practice of the U.S. Supreme Court. Jefferson’s complaint was that when the court presented only one opinion, no one could tell whether and on what issues there had been disagreement among the judges. “[S]ome of these cases too,” he explained, “have been of such importance, of such difficulty, and the decisions so grating to a portion of the public, as to have merited the fullest explanation from every judge seriatim, of the reasons which had produced such convictions on his mind.”

  Jefferson reasoned that the Constitution’s grant of “good behaviour” tenure left the judges accountable in only two ways: via impeachment, and before the bar of public opinion. Hiding the extent to which a particular judge shared in the opinion of the whole court meant shielding a particular member of the Supreme Court from both kinds of accountability for his performance in a particular case. Jefferson asserted that Attorney General Edmund Randolph had proposed to Congress during the Washington administration to begin publishing individual justices’ seriatim opinions. Congress had not had time to take this up, to Jefferson’s disappointment.

  Jefferson concluded by asking Justice Johnson what he thought of the state of parties. “[A]n opinion prevails that there is no longer any distinction,” he said, but it was not true. Seeing that the Battle of New Orleans had destroyed the “Federalist” label and having found monarchy a forlorn hope in the United States, Federalists now worked under the Republican name for the next best thing: to amalgamate the states. “[T]heir aim is now therefore to break down the rights reserved, by the constitution, to the states as a bulwork against that consolidation, the fear of which produced the whole of the opposition to the consititution at it’s birth.” He expressed confidence that this new gambit would fail as the old approach had.

  Johnson responded, perhaps surprisingly, quite ingenuously:10

  With regard to the Subject of the Supreme Court, I really am happy to be favoured with an Excuse for expressing myself freely and confidentially to you. Be assured that my Situation there has not been ‘a Bed of Roses.’ But it partakes in so many Respects of the Nature of a Cabinet that a Degree of Circumspection is indispensable in lifting the Curtain; and often, very often, have I wishd for some one whom I could consult on the Course proper to be pursued in discharging the Duties which devolved upon me there. But unfortunately I have never had a single Individual on the Bench with whom I could confer with unlimited Confidence.”

  While a South Carolina appellate judge, Johnson had been used to delivering seriatim opinions. He found early in his federal tenure, however, that his colleagues refused to do this, instead allowing Marshall to deliver all of the opinions—even in some instances when the court decided against his vote. Told this practice reflected the other justices’ respect for Marshall, “I soon … found out the real Cause. Cushing was incompetent, Chase could not be got to think or write—Patterson was a slow man & willingly declined the Trouble, & the other two Judges you know are commonly estimated as one Judge.” Though he tried dissenting once early in his tenure, “[a]t length I found that I must either submit to Circumstances or become such a Cypher in our Consultations as to effect no good at all. I therefore bent to the current,” though he did persuade the others to appoint an author for the majority and allow the others “to record their Opinions or not ad Libitum.” Trying to change things now would have the same negative consequences, and it would not lead incompetent justices to resign—only to give their votes over to others who would write on their behalf.

  Jefferson persisted.11 After encouraging Johnson to complete a history of parties on which he was launched (a project Jefferson had tried to recruit other people to undertake),12 he devoted the last part of another letter to the task of persuading the justice to write separate opinions more often. If Johnson did and others did not, their continuing “consolidation of our government by the noiseless, and therefore unalarming instrumentality of the Supreme court” would beget “suspicion that something passes which fears the public ear, and this spreading by degrees must produce at some time abridgement of tenure, facility of removal, or some other modification which may promise a remady. for in truth there is at this time more hostility to the federal judiciary than to any other organ of the government.” So Johnson at last agreed to write separate opinions in regard to “all Subjects of general Interest; particularly constitutional questions.”

  In return he asked Jefferson to let him know “… how far the Supreme Court has yet trespassd upon their Neighbours Territory, or advanced beyond their own constitutional Limits.” “I will not pretend that I have no View,” he continued,

  to bringing about a Change of your Opinions on the Subject, not for the Triumph, but for the Support it would afford me; but to have my own fairly & fully tried, believe me is my leading Motive. I cannot I acknowledge but flatter myself that in the main the Country is satisfied with our Decisions; and I urged our Friend Stevenson to bring forward his Motion on the 25th section of the Judiciary-act, in the Hope that there would be some Expression of public Sentiment upon the Subject. The Resolution unfortunately could not be taken up at the late session, and we are still left to conjucture. I acknowledge that some things have fallen from particular Judges which are exceptionable, and I exceedingly regret their Publication. But when the Decisions are examined upon their own Merits independently of the bad or defective Reasons of the Judge who delivers them, I do flatter myself that all in which I ever concurred will stand constitutional scrutiny.13

  Jefferson answered the question whether the Supreme Court had gone against the Constitution in his next letter14 by pointing to Roane’s “Algernon Sidney” essays, which “appeared to me to pulverise every word which had been delivered by Judge Marshall of the extrajudicial part of his opinion but, unable to claim that case, he could not let it go entirely, but went on gratuitously to prove that; notwithstanding the X[I]th amendment, of the constitution a state could be brought, as a defendant, to the bar of his court. and, again, that Congress might authorise a corporation of it’s territory to exercise legislation within a state, and paramount to the laws of that state.” There had been several decisions of the Supreme Court cutting into the reserved powers of the states, Jefferson insisted, and this reflected what he called the new program of the Federalists. Having failed to install a monarchy in the United States, they had decided to amalgamate the states into one political body, and the Supreme Court under John Marshall was leading the way.

  What galled Jefferson most about Marshall’s performances, here and in other cases, was his habit “of travelling out of his case to prescribe what the law would be in a moot case not before the court,” which Jefferson called “very irregular and very censurable.” The example that came to mind was Marbury v. Madison, in which, as the former president recalled, the Court had decided it had no authority to decide such a case, “but the Chief Justice went on to lay down what the law would be, had they jurisdiction of the case: to wit, that they should command the delivery.”

  Warming to his subject, Jefferson continued that

  the object was clearly to instruct any other court having the jurisdiction, what they should do, if Marbury should apply to them. besides, the impropriety of this gratuitous interference, could any thing exceed the perversion of law? for if there is any principle of law never yet contradicted it is that delivery is one of the essentials to the validity of a deed. altho’ signed and sealed, yet as long as it remains in the hands of the party himself, it is in fieri only, it is not a deed, and can be made so only by his delivery. in the hands of a third person it may be made an escrow, but whatever is in the executive offices is certainly deemed to be in the hands of the President; and in this case was actually in my hands, because when I countermanded them there was as yet no Secretary of state. yet this case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversion on it’s being merely an obiter dissertation of the Chief Justice.

  So it is now, more than ten generations later. In the meantime, after the exchange with Jefferson, Justice Johnson did file notably more dissenting and separate concurring opinions than any other justice, and more majority opinions than any but Marshall and Story, but it is not clear that the pattern of his doing so changed much.15