Guest Essayist: Joerg Knipprath

Over the years, the Supreme Court has addressed several constitutional topics in cases involving lotteries. Perhaps none is as significant as Chief Justice John Marshall’s opinion in Cohens v. Virginia. The case was the third major act in a decades-long contest over the nature of the Union and, more specifically, over the constitutional relationship between federal and state laws and between the federal and state judiciaries. On the last point the contest directly involved repeated clashes between the United States Supreme Court and the Virginia Court of Appeals (the state supreme court), and between two dominant jurists, Marshall and the chief judge of Virginia, Spencer Roane. Cohens v. Virginia is the climax in the story of those two rivals.

The case was factually straightforward. Brothers Philip and Mendes Cohen owned, among other enterprises, the largest and most honest lottery company in the country. They sold lottery tickets for the District of Columbia lottery established by act of Congress. When they sold such tickets through their office in Norfolk, Virginia, they were prosecuted for violating a state law that prohibited the sale of out-of-state lottery tickets. Not that Virginia was opposed to gambling, as such. Prohibition of lotteries as a vice that preyed on the poor is a product of later decades. Rather, like many American jurisdictions then and now, the state had its own lottery to raise money for its treasury. It simply wanted to exclude private competitors from this rather regressive form of voluntary taxation. The Cohens were convicted and appealed by writ of error.

The Cohens hired Maryland’s Senator William Pinkney as one of their attorneys. Pinkney, known for his articulate speech and pleasant voice, argued several famous cases before the Supreme Court, including for the Bank of the United States in McCulloch v. Maryland. This one would be his last, as he died a year later. As in McCulloch, Pinkney argued that enforcement of the state law was unconstitutional, since federal law had established the D.C. lottery whose tickets the Cohens sold.

Virginia disagreed with Pinkney on the merits, but, before addressing the merits, counsel challenged the very jurisdiction of the Supreme Court to review a state criminal conviction. Section 25 of the Judiciary Act of 1789 may purport to confer that jurisdiction on the Supreme Court, but that provision was unconstitutional. The state’s argument reprised those Roane had made in Martin v. Hunter’s Lessee (1816) regarding appeals from civil cases decided by state courts.

Marshall and Roane were the dominant personalities on their respective courts. Their lives intersected at numerous points. They had been classmates, briefly, while studying law with Virginia Chancellor George Wythe at the College of William and Mary. They were both members of the fledgling Phi Beta Kappa Society there. Both married into politically-connected Virginia families, though Roane did better, by marrying the eldest daughter of his boyhood idol and later political mentor, Patrick Henry. They both led political factions in Virginia. Roane was the more influential, in that he was the boss of a political machine, the Richmond Junto, which included some cousins and powerful agrarian republican politicians like Senator John Taylor of Caroline and Congressman John Randolph of Roanoke. Both jurists moved their respective courts away from deciding cases ad seriatim in the style of English courts, where each judge announced his opinion separately, to a unified–and, if at all possible, unanimous–opinion for the court written by a single judge. Eventually they became uneasy neighbors in downtown Richmond for several years.

Of more fateful consequence was their competition for a seat on the Supreme Court. Lame-duck President John Adams appointed John Marshall to the chief justiceship in 1801, a month before Thomas Jefferson took office. Jefferson wanted to appoint Roane, a missed chance Jefferson is said to have regretted the rest of his life. The Republicans’ later unsuccessful effort to impeach and remove Federalist Justice Samuel Chase was to be a potential prelude to the impeachment and removal of Marshall, as well as to make room for Roane.

In Martin, Roane argued that the Constitution was founded on dual sovereignty and did not create a consolidated union. Moreover, while Article VI, Section 2, obligated state judges to uphold the Constitution, laws, and treaties of the United States even against conflicting provisions of state law, they were bound as judges of the sovereign state of Virginia, not as functionaries of the general government. Not a word in the Constitution authorized the general government to be the final judge of its legislative or judicial powers. Nor was there anything that prohibited the state courts from being the final judges of the validity of state laws. Though Roane’s court had no part in the proceeding against the Cohens, his states’ rights arguments in Martin were replicated by Virginia’s attorney in his argument before the Supreme Court.

In a manner reminiscent of Justice Joseph Story’s holding in Martin, though with much less rhetorical flair, Marshall in Cohens upheld the Supreme Court’s final judicial authority over state courts. He began with a textual analysis. Article III, Section 2, of the Constitution defines the federal judicial power, including the appellate jurisdiction of the Supreme Court. It speaks of parties (“between Citizens of different States”) and causes (“arising under this Constitution”), not courts. Section 25, too, expressly allows for review of such state cases, and no constitutional objections were raised when it was enacted shortly after the Constitution was adopted.

To show the original understanding of the Court’s role, Marshall contended that even the Articles of Confederation had provided for Congress to establish courts to review the judgments of states and, implicitly, of state courts in cases of captures of enemy ships. For the Constitution, he quoted The Federalist No. 82 and Hamilton’s discussion of the concurrent jurisdiction of state and federal courts over specified matters:

“The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal Courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals….The evident aim of the plan of the national convention is that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the Courts of the Union.”

Referring to customary practice that shaped constitutional doctrine, Marshall noted that in no case but one (Roane’s Martin opinion) had a state court challenged the Supreme Court’s status, despite plentiful occasions to do so. Finally, quoting an unnamed “very celebrated statesman” (Alexander Hamilton in The Federalist 80), Marshall appealed to basic practicality. Having twenty different state courts decide without a final authority would be a “hydra in government from which nothing but contradiction and confusion can proceed.”

On a more fundamental level, Marshall rejected the “constitutional compact” basis of Virginia’s argument and strongly reaffirmed his McCulloch view that the states had surrendered a part of their sovereignty. “These states are constituent parts of the United States. They are members of one great empire.”

The paramount nature of the federal government in areas delegated to it under the Constitution produced a necessary corollary, namely, that each federal department was supreme in its function vis-à-vis the states. Therefore, the Supreme Court must be the ultimate arbiter in matters that involved the state courts’ interpretation of the Constitution and other federal law. This did not, ipso facto, turn state courts into mere instruments of the federal government. Their existence was still connected to the state sovereignties, and they still decided cases of state law over which the federal courts had no control. But this did reflect the choice of the ultimate sovereigns, the American people, to take some of the state governments’ traditional powers and place them in the general government and its branches.

Having rejected Virginia’s refusal to accept the Court’s authority to issue the writ of error on appeal, Marshall quickly dismissed the state’s argument that the Eleventh Amendment and the doctrine of sovereign immunity prevented the Cohens from challenging their conviction. Again, Marshall relied on the Constitution’s text and the historical understanding of the language. Here, the Cohens had not sued Virginia. The state could not simultaneously prosecute the Cohens and claim immunity from suit when they fought back.

In the final point of the litigation, whether the federal statute permitting the lottery in the District of Columbia authorized the Cohens to sell tickets in Virginia, Marshall found for the state. The Cohens had not shown that Congress intended to reach beyond the boundaries of the District into the states. This was classic Marshall. It has been said that Marshall never denied to Jefferson the specific result the latter desired, even as he increased the judiciary’s constitutional powers and institutional prestige. Marbury v. Madison was the prime, but not the only, example. In similar vein, while affirming the federal courts’ power over state judiciaries specifically and state governments more generally, he upheld Virginia’s prosecution of the Cohens. As in Marbury, and unlike with Story’s haughty mandate to the Virginia courts in Fairfax’s Devisee v. Hunter’s Lessee (1813)–the predecessor to Martin–there was no judicial order to disobey. Their paper victory on the conviction did not prevent the more militant states’ rights advocates like Roane, egged on by the increasingly alarmed Jefferson, from attacking the essence of the decision in tones that sometimes verged on the intemperate.

After the decision in McCulloch, Roane had written editorials in the Richmond Enquirer, a Republican paper he had helped found in 1804. Under the pseudonyms “Hampden” and “Amphictyon,” he had challenged Marshall’s reasoning and launched a strong defense in favor of state sovereignty. He now did the same in five articles following the decision in Cohens in 1821, under the name Algernon Sidney, after the executed 17th century Whig politician whose writings influenced Revolutionary War-era Americans. Roane’s impassioned reasoning persuaded those who needed no persuading, but Marshall’s decision still stood.

Having been thwarted by Marshall in the courtroom, Roane rallied for a final charge. Using the willing agency of Kentucky’s Senator Richard Johnson, he pushed for a constitutional amendment to give the Senate the right of final appellate review of cases where state constitutions or laws were questioned, or where a federal court decided a case arising under the Constitution, treaties, or laws of the United States. According to one scholar, “From the standpoint of an advocate of State Rights no more powerful argument was ever made in Congress than that of Johnson. He analyzed the decision of Marshall with a clearness neither Jefferson nor Madison had surpassed.”

That was Roane’s last campaign. He died in 1822, followed in two years by John Taylor of Caroline, and in four years by Thomas Jefferson and John Randolph of Roanoke. Virginia’s intellectual leaders of radical agrarian states’ rights republicanism were gone. Senator Johnson abandoned his proposal. Marshall had survived, victorious.

The victor writes the history.  Had it not been for that one month in 1801 before Jefferson’s inauguration, Roane would have been in Marshall’s seat. As one scholar has observed cogently,

“To the student of the Constitution, no imagination can construct the fate of the Nation if there had been no Marbury v. Madison, no Cohens v. Virginia, no Dartmouth College case, no Fletcher v. Peck, no Martin v. Hunter’s Lessee, no Gibbons v. Ogden, no McCulloch v. Maryland.”

Perhaps that is exaggerated, for one will never know to what extent the responsibilities of the office of Chief Justice would have tempered the ardency of Roane’s advocacy against a consolidated Union. But it is unlikely that Roane’s temperament, political outlook, and upbringing would have produced the judicial nationalism of the Marshall Court or the institutional vigor that Marshall’s skills bequeathed to the judiciary.

Cohens v. Virginia (1821) Supreme Court decision:

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

3 replies
  1. Barb Zakszewski
    Barb Zakszewski says:

    Excellent historical lesson and analysis of this case. Back when judges and justices actually used and cited the Constitution in formulating their opinions.

  2. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you Professor. Living an a day and age when bureaucratic, administrative excesses is exercised daily it is easy to dismiss or even disdain hierarchical design and authority. But chaos and anarchy result if their is no unifying, final rule of law. This has been proven recently when Mayors decide they can defy Federal law.

    Perhaps the ultimate exercise of freedom without responsibility is, “everyone did what was right in his/her own eyes.” It is notable that lack of respect or appreciation for rule of law follows close on the heels of losing respect for the ultimate, final authority, “And all that generation also were gathered to their fathers, and there arose another generation after them who did not know the LORD, nor yet the work which He had done …”

    As noted in the essay, it is interesting to see how subtle bends in the road [Marshall instead of Roane, numerous last minutes twists in civil war battles] can radically change the path of an entire nation. Happen stance or Providence? I guess a person’s answer depends on whether they know the LORD and work which He does, or not.


  3. Ron
    Ron says:

    PSD, love your biblical quote; most appropriate in light of the current situation with respect to “unlawfully present aliens,” the correct legal term in the Act for “illegal immigrants” or “undocumented immigrants,” depending on your political correctness. Sanctuary cities are the prime example of that quote.


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