Guest Essayist: Daniel A. Cotter
Mandate or Law: The American Founders on Warning Against Arbitrary, Tyrannical Dictates Diluting Rule of Law


This year’s Constituting America’s 90 Day Study has focused on state and local government and, for each state, has discussed the constitution that each state has adopted.  In every instance, the state constitution specifies the branches of government, including a judicial branch.  How state supreme courts work in relation to the United States Supreme Court is mostly a matter of jurisdiction, with the United States Supreme Court and  “such inferior Courts as the Congress may from time to time ordain and establish” created by the United States Constitution.

The Founding Fathers of our nation did not spend as much time debating and did not spend as much time drafting and discussing Article III, which created the federal courts and gave Congress extensive power to determine the structure of the judiciary.

Alexander Hamilton, expressing his views in the Federalist Papers, had a clear view of what powers the judiciary had and how they fit in the three branches of the new national structure.

In Federalist No. 78, Hamilton noted that the judiciary would be the weakest of the three branches because it had “no influence over either the sword or the purse, …It may truly be said to have neither FORCE nor WILL, but merely judgment.” With only the power of the word, and no enforcement powers, the Founders considered the judicial branch as dependent to some extent on the political branches to uphold its judgments.

The Federalist 78 also supported the notion that the nation’s judiciary would serve as lower than, and not superior to, the legislative branch in order only to function as interpreter and not maker of law; Alexander Hamilton in Federalist 78, “The interpretation of the laws is the proper and peculiar province of the courts.”  However, this is not to say that when the John Marshall Supreme Court announced its decision in Marbury v. Madison in 1803, that their finding that “It is emphatically the province and duty of the judicial department to say what the law is” should have been a surprise to the nation.  Hamilton in Federalist 78 stated clearly how the Constitution and other lower laws were to be assessed:

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

State Courts

The state and local courts generally address and rule on cases and controversies that involve law and the constitution of that state.  However, in some instances, those state court rulings can be appealed and challenged in the federal courts.  If the issue is whether a state law violates the Constitution, then federal courts may hear the dispute.  In addition, in some instances, if the jurisdictional thresholds are met, then there might be dual jurisdiction.

An Early Clash

When John Marshall became Chief Justice of the Supreme Court in 1801, his former schoolmate, Spencer Roane, had already served as a member of the Virginia Supreme Court of Appeals for six years.  Marshall was a nationalist, his views developed at least in part from his service in the Revolutionary War and the deprivations he witnessed. Roane, who was aligned with Thomas Jefferson, was a strong states’ rights advocate.  The two clashed a number of times over the years, with Roane ruling in a case that Marshall had been an advocate, Pleasants v. Pleasants. However, Roane would engage in some nullification after Marshall became chief justice.  Roane refused to follow the decision handed down by the Marshall Court in 1815, Martin v Hunter’s Lessee.  Later, after the Court issued McCulloch v. Maryland, which addressed the United States Congressional powers vis-à-vis the state legislative powers in a controversy over the legality of the national bank, Roane wrote several editorials under pseudonyms attacking the Marshall Court’s decision. Roane also wrote a number of articles that where precursors to the Nullification Crisis.

Andrew Jackson

President Andrew Jackson did not care for the Marshall Court 1832 decision, Worcester v. Georgia, which addressed Native Americans rights and tribal sovereignty.  Jackson reportedly stated, “John Marshall has made his decision; now let him enforce it!”  While there is no direct evidence he uttered those exact words, he did write in a letter to John Coffee that “the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”


The federal and state courts are separate entities with different jurisdictional limits and powers.  While state issues might be litigated in federal courts if jurisdictional requirements are satisfied, United States Constitutional issues are ultimately the federal courts to decide.  The Founders at the national and state levels expected the third branch, while co-equal to the other branches, to be the least powerful branch and interpreters only of laws.

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Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you for elucidating the establishment and intention of the Judiciary.

    “interpreter, not make of law.”

    Question, in the statement, ‘ “It is emphatically the province and duty of the judicial department to say what the law is” should have been a surprise to the nation. Hamilton in Federalist 78 stated clearly … “. Did the author intend to write, should NOT have been a surprise to the nation? I ask because it seems to me that Hamilton’s statement in Federalist 78 aligns with Marshall’s statement. Or am I misunderstanding the author’s statement, Hamilton’s, or both?



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