Cohens v. Virginia

The citation for this case is 19 US [6 Wharton] 264. It was argued on February 13, 1821 and was unanimously decided on March 3, 1821. It’s one of the major pre-Civil War cases that undermines the delusion that unilateral state secession could possibly be legal.

“Philip and Mendes Cohen sold lottery tickets in Virginia under the authority of an act of Congress for the District of Columbia. The Cohens appealed their conviction for violating the state statute, which had banned such lotteries. Virginia asserted that the Eleventh Amendment precluded the Supreme Court from hearing the case and that section 25 of the Judiciary Act of 1789 did not apply.” [Kermit L. Hall, “Cohens v. Virginia” in Kermit L. Hall, ed., The Oxford Guide to United States Supreme Court Decisions, p. 58]

This was a long case, with the arguments taking up over a hundred pages in the record. Chief Justice John C. Marshall wrote the Court’s decision. In that decision, he considered the arguments of Virginia’s lawyers who claimed for several reasons that the Court had no jurisdiction in the case, specifically claiming that Virginia was a sovereign, independent state. Mr. Barbour claimed, “It is an axiom in politics, that a sovereign and independent State is not liable to the suit of any individual, nor amenable to any judicial power, without its own consent. All the States of this Union were sovereign and independent, before they became parties to the federal compact: hence, I infer, that the judicial power of the United States would not have extended to the States, if it had not been so extended to them, eo nomine, upon the face of the constitution. But if it can reach them only because it is expressly given in relation to them, then it can only reach them to the extent to which it is given. By the original text of the constitution, the judicial power of the Union was extended to the following cases, in which States were parties; to wit, to controversies between two or more States, between a State and citizens of another State, and between a State and foreign States, citizens, and subjects. The case of a contest between a State and one of its own citizens, is not included in this enumeration; and, consequently, if the principle which I have advanced be a sound one, the judicial power of the United States does not extend to it; but the uniform decision of this Court has been, that if a party claim to be a citizen of another State, it must appear upon the record. As that does not appear upon the record in this case, I am authorized to say, that the plaintiffs in error are citizens of Virginia: then it is the simple case of a contest between a State and one of its own citizens, which does not fall within the pale of federal judicial power.” [19 US 264, 303] Mr. Smyth argued, “The question, whether a State Court has jurisdiction or not, is a judicial question, to be settled by the State judiciary, and not by an act of Congress, nor by the judgment of the Supreme Court of the United States. Shall the States be denied the power of judging of their own laws? As their legislation is subject to no negative, so their judgment is subject to no appeal. Sovereignty consists essentially in the power to legislate, judge of, and execute laws. The States are as properly sovereign now as they were under the confederacy; and we have their united declaration that they then, individually, retained their sovereignty, freedom, and independence. The constitution recognizes the sovereignty of the States: for it admits, that treason may be committed against them. They would not be entitled to the appellation of ‘States’ if they were not sovereign.” [19 US 264, 327]

In his decision, Chief Justice Marshall wrote, “The American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. They have been taught by experience, that this Union cannot exist without a government for the whole; and they have been taught by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent States. Under the influence of this opinion, and thus instructed by experience, the American people, in the conventions of their respective States, adopted the present constitution. If it could be doubted, whether from its nature, it were not supreme in all cases where it is empowered to act, that doubt would be removed by the declaration, that ‘this constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; any thing in the constitution or laws of any State to the contrary notwithstanding.’ This is the authoritative language of the American people; and, if gentlemen please, of the American States. It marks, with lines too strong to be mistaken, the characteristic distinction between the government of the Union, and those of the States. The general government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the constitution; and if there be any who deny its necessity, none can deny its authority.” [19 US 264, 380-381]

He continues, “With the ample powers confided to this supreme government, for these interesting purposes are connected many express and important limitations on the sovereignty of the States which are made for the same purposes. The powers of the Union, on the great subjects of war, peace, and commerce, and on many others, are in themselves limitations of the sovereignty of the States; but, in addition to these, the sovereignty of the States is surrendered in many instances where the surrender can only operate to the benefit of the people, and where, perhaps, no other power is conferred on Congress than a conservative power to maintain the principles established in the Constitution. The maintenance of these principles in their purity is certainly among the great duties of the government. One of the instruments by which this duty may be peaceably performed is the judicial department. It is authorized to decide all cases of every description arising under the Constitution or laws of the United States. From this general grant of jurisdiction, no exception is made of those cases in which a State may be a party. When we consider the situation of the government of the Union and of a State in relation to each other; the nature of our Constitution; the subordination of the State governments to that Constitution; the great purpose for which jurisdiction over all cases arising under the Constitution and laws of the United States is confided to the judicial department; are we at liberty to insert in this general grant an exception of those cases in which a State may be a party? Will the spirit of the Constitution justify this attempt to control its words? We think it will not. We think a case arising under the Constitution or laws of the United States is cognizable in the Courts of the Union whoever may be the parties to that case.” [19 US 264, 382-383]

He then gets to the heart of the matter: “The mischievous consequences of the construction contended for on the part of Virginia are also entitled to great consideration. It would prostrate, it has been said, the government and its laws at the feet of every State in the Union. And would not this be its effect? What power of the government could be executed by its own means in any State disposed to resist its execution by a course of legislation? The laws must be executed by individuals acting within the several States. If these individuals may be exposed to penalties, and if the Courts of the Union cannot correct the judgments by which these penalties may be enforced, the course of the government may be at any time arrested by the will of one of its members. Each member will possess a veto on the will of the whole. The answer which has been given to this argument does not deny its truth, but insists that confidence is reposed, and may be safely reposed, in the State institutions, and that, if they shall ever become so insane or so wicked as to seek the destruction of the government, they may accomplish their object by refusing to perform the functions assigned to them. We readily concur with the counsel for the defendant in the declaration that the cases which have been put of direct legislative resistance for the purpose of opposing the acknowledged powers of the government are extreme cases, and in the hope that they will never occur, but we cannot help believing that a general conviction of the total incapacity of the government to protect itself and its laws in such cases would contribute in no inconsiderable degree to their occurrence.” [19 US 264, 385-386]

He goes on powerfully, “Let it be admitted that the cases which have been put are extreme and improbable, yet there are gradations of opposition to the laws, far short to those cases, which might have a baneful influence on the affairs of the nation. Different States may entertain different opinions on the true construction of the constitutional powers of Congress. We know that, at one time, the assumption of the debts contracted by the several States during the war of our revolution was deemed unconstitutional by some of them. We know, too, that, at other times, certain taxes imposed by Congress have been pronounced unconstitutional. Other laws have been questioned partially, while they were supported by the great majority of the American people. We have no assurance that we shall be less divided than we have been. States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert that the judicatures of the States will be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States, the judges are dependent for office and or salary on the will of the legislature. The Constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that Constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist, in all cases where a State shall prosecute an individual who claims the protection of an act of Congress. These prosecutions may take place even without a legislative act. A person making a seizure under an act of Congress, may be indicted as a trespasser, if force has been employed, and of this a jury may judge. How extensive may be the mischief if the first decisions in such cases should be final! These collisions may take place in times of no extraordinary commotion. But a Constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed if they have not provided it, as far as its nature will permit, with the means of self-preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day. Courts of justice are the means most usually employed, and it is reasonable to expect that a government should repose on its own Courts, rather than on others. There is certainly nothing in the circumstances under which our Constitution was formed, nothing in the history of the times, which would justify the opinion that the confidence reposed in the States was so implicit as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legitimate measures of the Union. The requisitions of Congress under the confederation were as constitutionally obligatory as the laws enacted by the present Congress. That they were habitually disregarded is a fact of universal notoriety. With the knowledge of this fact, and under its full pressure, a convention was assembled to change the system. Is it so improbable that they should confer on the judicial department the power of construing the Constitution and laws of the Union in every case, in the last resort, and of preserving them from all violation from every quarter, so far as judicial decisions can preserve them, that this improbability should essentially affect the construction of the new system? We are told, and we are truly told, that the great change which is to give efficacy to the present system is its ability to act on individuals directly, instead of acting through the instrumentality of State governments. But ought not this ability, in reason and sound policy, to be applied directly to the protection of individuals employed in the execution of the laws, as well as to their coercion. Your laws reach the individual without the aid of any other power; why may they not protect him from punishment for performing his duty in executing them?” [19 US 264, 386-388]

He next tackles the claim that all states have to do is not elect senators to bring down the government. “It is very true that, whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the Constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake resides only in the whole body of the people, not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it. The acknowledged inability of the government, then, to sustain itself against the public will and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutional inability to preserve itself against a section of the nation acting in opposition to the general will. It is true that, if all the States, or a majority of them, refuse to elect Senators, the legislative powers of the Union will be suspended. But if any one State shall refuse to elect them, the Senate will not, on that account, be the less capable of performing all its functions. The argument founded on this fact would seem rather to prove the subordination of the parts to the whole than the complete independence of any one of them. The framers of the Constitution were, indeed, unable to make any provisions which should protect that instrument against a general combination of the States, or of the people, for its destruction; and, conscious of this inability, they have not made the attempt. But they were able to provide against the operation of measures adopted in any one State whose tendency might be to arrest the execution of the laws, and this it was the part of true wisdom to attempt. We think they have attempted it.” [19 US 264, 389-390]

Chief Justice Marshall also considers “The second objection to the jurisdiction of the Court is that its appellate power cannot be exercised, in any case, over the judgment of a State court.” [19 US 264, 413] He tells us, “This objection is sustained chiefly by arguments drawn from the supposed total separation of the judiciary of a State from that of the Union, and their entire independence of each other. The argument considers the federal judiciary as completely foreign to that of a State, and as being no more connected with it in any respect whatever than the court of a foreign State. If this hypothesis be just, the argument founded on it is equally so; but if the hypothesis be not supported by the Constitution, the argument fails with it.” [Ibid.] So he takes on that claim: “This hypothesis is not founded on any words in the Constitution which might seem to countenance it, but on the unreasonableness of giving a contrary construction to words which seem to require it, and on the incompatibility of the application of the appellate jurisdiction to the judgments of State courts with that constitutional relation which subsists between the government of the Union and the governments of those States which compose it. Let this unreasonableness, this total incompatibility, be examined. That the United States form, for many and for most important purposes, a single nation has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one, and the government, which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation, and for all these purposes, her government is complete; to all these objects, it is competent. The people have declared that, in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The Constitution and laws of a State, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire — for some purposes sovereign, for some purposes subordinate. In a government so constituted, is it unreasonable that the judicial power should be competent to give efficacy to the constitutional laws of the legislature? That department can decide on the validity of the Constitution or law of a State, if it be repugnant to the Constitution or to a law of the United States. Is it unreasonable that it should also be empowered to decide on the judgment of a State tribunal enforcing such unconstitutional law? Is it so very unreasonable as to furnish a justification for controlling the words of the Constitution? We think it is not. We think that, in a government acknowledgedly supreme, with respect to objects of vital interest to the nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme so far as respects those objects and so far as is necessary to their attainment. The exercise of the appellate power over those judgments of the State tribunals which may contravene the Constitution or laws of the United States is, we believe, essential to the attainment of those objects.” [19 US 264, 413-415]

He next takes on the idea that the state courts can be equal to the Supreme Court: “If the federal and State courts have concurrent jurisdiction in all cases arising under the Constitution, laws, and treaties of the United States, and if a case of this description brought in a State court cannot be removed before judgment, nor revised after judgment, then the construction of the Constitution, laws, and treaties of the United States is not confided particularly to their judicial department, but is confided equally to that department and to the State courts, however they may be constituted. ‘Thirteen independent Courts,’ says a very celebrated statesman (and we have now more than twenty such Courts) ‘of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government from which nothing but contradiction and confusion can proceed.’ ” [19 US 264, 415-416]

Marshall therefore denied the motion to dismiss the case, ruling that the Court did have jurisdiction to hear it. After hearing the case, the Court ruled against the Cohens, upholding their conviction in the Virginia court.

What is important to us, though, is what Marshall ruled regarding the relationship of the states and the Federal Government under the Constitution. With the supremacy of the Federal Government intact, no state can claim they are an independent sovereignty, and no state has the power to unilaterally secede from the United States.




  1. Contrary to the claim that this decision somehow negates the right of secession, it completely re-affirms the right of a state to secede. The Supremacy Clause, on which the decision is based, simply states that the Constitution is the supreme law of the land, which is an obvious truth. And because the constitution demonstrably contains no prohibition against secession, the decision re-asserts the fact that the states reserve the right to exercise all the powers it holds as reserve powers. The right to secede is clearly one such reserve power held by the states.

    1. Thanks for proving once again how dumb neoconfederates really are. By the Supremacy Clause, no state can declare the US Constitution or US Laws do not apply to it. Hence, no state can unilaterally secede from the United States. The philosophy behind the ludicrous belief that unilateral secession is legal is the idea that the states are really independent sovereigns. This decision clearly blows that delusion out of the water. I’m afraid you probably won’t have anything to reply that can possibly be taken seriously. Have a nice day.

  2. [edit]

    1. Not only is the troll incapable of conversation, he also is incapable of learning. That’s why he has what it takes to be a neoconfederate. One would think these idiots get tired of showing their stupidity. But they’re not self-aware.

      1. Jimmy Dick · · Reply

        The good buddy, Caldwell again? Same claim, same ignorance. These people never learn. They insist over and over again that they are right despite an overwhelming mountain of evidence that rejects their claims.

        1. Yeah, he thinks he’s smart, but isn’t self-aware. These people are too stupid to learn.

  3. [edit]

    1. And the troll shows once again he’s an ignorant, idiotic, moronic fool who lacks the ability to engage in an adult conversation. When his parents find out he’s using bad language online they’re probably going to suspend his computer privileges once again. That’s what happens when you live in your parents’ basement. You have to live by their rules.

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