Irreconcilable Founders: Spencer Roane, John Marshall, and the Nature of America’s Constitutional Republic
By David Johnson.
LSU Press, 2021
Hardcover, 256 pages, $45.

Reviewed by John Grove

There is nothing new under the sun, and that certainly applies to modern-day concerns about judicial activism. It is one of those terms that can be defined a thousand different ways—is it when the Court overturns too many acts of the legislature? Overturns precedent too often? Fails to abide by the words of statutes and constitutions? Despite its imprecision, it is an important problem, for it encapsulates a broad-based anxiety about arbitrary rule.

It is this salutary fear of unchecked power that defines the legacy of Virginia judge Spencer Roane, according to David Johnson’s recent book, Irreconcilable Founders: Spencer Roane, John Marshall, and the Nature of America’s Constitutional Republic. The subtitle aside, this is a book about Roane’s life and legal legacy, with John Marshall serving only as the Jeffersonian’s foil.

Outside of legal or early-Republic historians, Roane is almost entirely unknown today, in part because he spent his entire career as a judge in the Virginia judicial system. But during his life, Johnson shows, he was one of the most influential Jeffersonians, playing a significant role in defining Republican legal and constitutional positions. The son of a wealthy Virginia planter, Roane came of age during the American Revolution, the historical moment that, to his mind at least, would define his political principles. A disciple (and son-in-law) of Patrick Henry, he was a moderate Anti-Federalist in the House of Delegates, and he was an ardent defender of states’ rights as a judge on the Virginia General Court and Court of Appeals (the state’s highest court at the time).

Johnson, himself a judge of the circuit court of Chesterfield County Virginia, provides an outline of Roane’s life but focuses mostly on the content of his legal positions. Like many judges of his era, Roane was politically active in ways that would universally be seen as unacceptable today. He was a prominent leader of the group of influential Republicans known as the “Richmond junto,” he was a regular correspondent with three presidents—Jefferson, Madison, and Monroe—and wrote several pseudonymous pamphlets attacking the Supreme Court’s decisions in McCulloch v. Maryland and Cohens v. Virginia. In addition to his biography and analysis, Johnson has done a service by including excerpts of these “Hampden” and “Algernon Sydney” essays in a sixty-page appendix.

Roane was influential in his own right, writing an opinion that firmly established the power of judicial review within the Virginia judicial system. The legal drama of the book, however, comes from his lifelong conflict with John Marshall over the powers of the federal judiciary and the nature of the American federal republic. Johnson presents these battles chronologically, starting with an encounter between the two on a manumission case (Roane was the judge, Marshall the counsel). But the most substantial engagements, those from which Roane would make his name, can be considered thematically under two broad heads: the scope of federal judicial authority and the scope of federal legislative authority.

These were two fronts on a war over the nature of America’s federal republic. Roane understood the Constitution as a product of a compact between the states—by which he meant not the state governments but the people of each state. This ultimate popular sovereignty was never delegated or diminished, but government powers were divided between two self-sufficient governments, each supreme within its own realm. Taking his cue from the reassurances offered by Federalists in 1787–88, he argued that the new Constitution did not fundamentally transform the union, but moderately expanded the amount of power delegated to the confederation’s central authority and created the government institutions necessary to effectively administer that limited central authority.

State Sovereignty and Appellate Jurisdiction

Could the United States Supreme Court exercise jurisdiction over “the Emperor of Russia” or “The Supreme Court of Calcutta”? Roane sarcastically suggested such examples on multiple occasions, capturing the Jeffersonian reaction to the Court overruling state courts on cases between a state and its own citizens concerning the extent of state power.

In Martin v. Hunter’s Lessee, a case involving the status of land belonging to Lord Fairfax and confiscated by the state during the revolution, Roane and the other members of the Virginia Court of Appeals had unanimously denied the Supreme Court’s appellate jurisdiction in appeals from state courts in cases between citizens of that state or between the state itself and its citizens, arguing that Section 25 of the Judiciary Act of 1789 (which established such removal power) was an unconstitutional expansion of federal authority. He would stand by that argument in his later essays against McCulloch and Cohens. This power to remove cases from state to federal courts relegated state supreme courts to the status of “inferior federal tribunals,” annihilating the independence of the state judicial system. Drawing on the principles of strict construction, he argued that such a drastic imposition on the states should not be inferred from a broad grant of federal jurisdiction without “express and explicit words” to that effect.

Marshall and Joseph Story (author of Hunter’s Lessee, Marshall having recused himself for a previous stake he had in the case) didn’t just rely on the Judiciary Act or the language of Article III. They went out of their way to make a broader case that the Supreme Court was intended to be the “single tribunal” vested with “the power of deciding, in the last resort” all cases involving federal law. Roane ably critiqued this “despotic” view of the matter—pointing out that it would leave the ultimate authority—that of determining the content of fundamental law—without any of the checks that characterized the rest of the Constitution. In determining the powers of the federal and state governments, he believed, “neither is competent to bind the other.”

Marshall and Story, of course, argued that this lack of any final interpretive authority would amount to judicial anarchy, which certainly could not be the intent of wise legislators. But Roane thought that logic fallacious: “The great fault of the present time is in considering the constitution as perfect,” he noted in the third “Hampden” essay. By treating the Constitution as a rational whole, prepared by wise lawgivers—instead of a patchwork compromise to which sovereign states assented—courts could make assumptions about the document. Surely, the framers would not have done x if they did not intend y, the logic goes. Surely, if the “enlightened” framers (Story’s word) declared the Constitution to be “the supreme law of the land,” they must have expected there to be one final tribunal, because conflicting interpretations of the supreme law are obviously undesirable. Marshall called this the “necessity of uniformity” in Cohens. But, Roane retorted, the single tribunal solution only posed different problems, not least of which that it would put in the hands of one disputing party (the federal government) the authority to decide a question between equals. “Collisions between them are not to be causelessly apprehended; but they are the lesser of evils when compared to the despotic power which is now claimed for the supreme court.”

While the Jeffersonian position on the jurisdictional question may not convince most twenty-first century readers (and it did not even convince some moderate republicans at the time, including James Madison) it did have much stronger support than most people today would think. And the shock at the idea of state high courts deciding the meaning of the Constitution differently is somewhat lessened when you consider that this was a time prior to the ubiquitous constitutional oversight of state law brought on by the Fourteenth Amendment. Just as firmly as Marshall and the nationalists believed it was ridiculous to give a “part” the authority to interpret the law of the “whole,” so Roane and the Republicans believed it was ridiculous to give the agent authority to dictate to the principal.

And Roane was also able to call on an interesting expert witness in making his claim: Marshall himself. At Virginia’s constitutional ratifying convention, the case of the Fairfax land (it was a decades-long affair) had been used as an example of the potentially uncontrollable power of federal treaties under the Constitution. Delegate Marshall had dismissed such fears: Should Fairfax lay claim to his land, “what laws will his claims be determined by? By those of this state. By what tribunals will they be determined? By our state courts.” “The [state] courts,” he went on, “will not lose jurisdiction of the causes they now decide. They have a concurrence of jurisdiction with the federal courts in those cases [involving federal law].”

Even if Roane’s position does not fully convince on the merits, it does drive home an appreciation for the existence of unavoidable problems. Constitutional interpretation is one of them—there is no place where the authority to interpret supreme law can be vested without danger. A union, he warned, might be “as well destroyed by claims or powers of a centripetal as those of a centrifugal tendency.”

McCulloch v. Maryland

The other clash between Roane and Marshall related by Johnson took place over the extent of federal legislative power in McCulloch v. Maryland. Marshall famously penned the early Court’s most expansive opinion interpreting the Necessary and Proper Clause’s limits, or lack thereof, striking down a tax imposed by the state of Maryland on the Second Bank of the United States. In McCulloch, Marshall established that the Constitution allowed the use of whatever reasonable means Congress chooses to pursue the objects of its enumerated powers: “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.”

Notably, Roane did not oppose the establishment of the bank, having previously taken the Madisonian position that the precedent of the first bank lent credence to the establishment of the second. But he unleashed the pen of “Hampden” against McCulloch’s expansive reading of federal power, arguing that the rationale threatened to destroy all limits on the national government except those few rights specifically articulated in the document itself.

Roane granted one of the most recognizable arguments of McCulloch—namely, the principle that a grant of a power “carries with it all those means … which are necessary to … the execution of the power.” This, he argued, is a basic precept of “the law of nature, of nations, of war, of reason, and of the common law,” and it would have been implied by any constitutional grant of power, even without the Necessary and Proper Clause. But the principle was hardly decisive, for it bordered on tautology and merely reinforced the importance of the word “necessary.” Citing common law and common sense, Roane argued that for the principle to be valid, the “means” must be “necessary” in a strict sense of the word—not merely convenient. A grant of a plot of land implies a right to access that land, but it does not imply the right to build a highway across another’s land, however “appropriate” it may be to the purpose of the grant. But that is what Roane believed the McCulloch decision did—opened a highway on which the federal government might ride over the reserved powers of states.

It is hard to disagree with Roane in his claim that Marshall read the word “necessary” out of the Constitution. “Appropriate” and “not prohibited” simply do not add up to “necessary” by any common definition of the word then or now. Consider that Marshall did not even require that the government demonstrate that previously existing, non-federal banks were insufficient to carry out the enumerated ends of government. And, whatever Marshall’s intent, McCulloch has been cited ad infinitum to justify expansion of federal authority into just about every conceivable area of public life.

By the time Roane died in 1822, he had witnessed and fought in vain against legal developments that confirmed his Anti-Federalist fears of four decades prior. In 1995, after nearly a century of rapid federal expansion thanks in part to the federal court’s expansive reading of the Necessary and Proper Clause, the Supreme Court sought to put some sort of limit to the tendency to “pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power.” It took nearly a century, but the door was at least cracked opened to such piles of inferences by Marshall’s redefinition of “necessary.”

One can read McCulloch moderately, emphasizing the limits of its claims. But to the Virginia Republicans, even the moderate and restrained ones like Madison, it was an outright rewriting of the Constitution, one that—had it been explicitly articulated by the Federalists—would have prevented the ratification of the Constitution in the first place. And even if such a moderate reading is correct, it would at least suggest that Roane was the more far-seeing of the two jurists. He and the Virginia Republicans recognized that the principles articulated by Marshall could easily be used to transform the limited, enumerated powers of Congress into a plenary authority to regulate society in whatever way it saw fit, so long as it presented those regulations as “means.”

Roane, his context, and his arguments are long gone, and so do not point the way forward today for those concerned about federal and/or judicial overreach. But Johnson’s study of Roane and his ideas is certainly useful in helping us more fully appreciate the choices available in the early republic, and for understanding, in part, how we acquired—for good or for ill—the judiciary we have today.  

John G. Grove is associate editor of Law & Liberty.

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