The Interbellum Constitution, page 28
Adams, evidently pleased with Wirt’s conclusions, sent the attorney general’s opinion along with copies of protests from the British government to the governor of South Carolina, John L. Wilson. Adams asked Wilson if, given Wirt’s opinion, the state might stay its enforcement of the Seamen Act. Wilson conveyed the opinion and remonstrances to the state legislature.166 The response from both governor and legislature was unequivocal, bellicose, and loud. Wilson denounced “the opinion of Mr. Wirt” as “sophistry and error” and an “unconstitutional interference” with slavery, which they insisted was guaranteed by the Constitution (specifically, the Three-Fifths Clause of Article I, section 2).167 The state legislature then passed a concurrent resolution stating that slavery was “inseparably connected with their social and political existence,” and denying the federal government’s power “to interfere in any manner whatever, with the domestic regulations and preservatory measures in respect to that part of their property.”168
Despite South Carolina’s intransigence, Wirt’s opinion remained the official view of the executive branch, until it was reversed by Andrew Jackson’s attorney general, John Macpherson Berrien, a Georgia native, in 1831.169 Adams, by then a member of Congress, continued the fight against the South Carolina act until his death in 1848.
One must ask: In the standoff with South Carolina, was Wirt representing a client, or did his opinion reflect his own views? The answer is difficult to ascertain with certainty. But clearly, having witnessed the hostile responses to Johnson’s Elkison decision, Wirt knew that his opinion would earn him infamy in many quarters. Yet nothing about the opinion suggests that he was merely providing legal support for Monroe’s or Adams’s plans. On the contrary, as his opinion in the case of the St. Croix slave James Barry demonstrated, Wirt knew how to draft opinions in such a way as to leave open certain questions about their scope. Nowhere in his opinion on the South Carolina Seamen Act, however, did he warn his interlocutor against giving the opinion more weight “than it fairly deserves”; nor did he describe the question as a political one suited to the statesman rather than to the lawyer.
When Wirt wrote as attorney general, he viewed himself as writing on behalf of the United States—“the Government whose officer I am,” as he put it on more than one occasion.170 In that capacity, he understood himself to be obliged to offer his own best analysis of the Constitution and laws of the United States. “I do not consider myself as the advocate of the government … but as a judge, called to decide a question of law with the impartiality and integrity which characterizes the judician,” he wrote to Secretary of War Calhoun. “I should consider myself as dishonoring the high-minded government, whose officer I am, in permitting my judgment to be warped in deciding any question officially by the one sided artifice of the professional advocate.”171
For this reason, it is significant that Wirt’s theory of the federal commerce power in his opinion on the Seamen Act reached even farther than had his description of the power three months earlier, when he had argued Gibbons v. Ogden. As attorney general, Wirt rested his opinion on the bold proposition that federal power over interstate and foreign commerce was exclusive, and therefore that a state law that trenched on the domain of that power was invalid. His opinion began with the exclusive-power thesis. Additional support came from the fact that Congress had in fact legislated in the arena of foreign and interstate commerce, by virtue of the 1793 coasting statute, thus preempting conflicting state legislation. The commerce power was robust and extensive enough to defeat a state’s effort to “add to, vary, or obstruct” its exercise, or even to “touch the subject” of federal commercial regulation. In the arena of commerce among the states and with other nations, Wirt’s deep-seated commitment to a superintending federal authority apparently outweighed his “Virginian” affinities for concurrent power and even, in some cases, for slavery.
Justice Johnson and the Press
And what of Johnson? True to form, in the months following his decision in Elkison, he engaged in a protracted debate in the pages of the Charleston newspapers defending his opinion on the constitutionality of the South Carolina statute. Under the pen names of “Philonimus” and “Hamilton,” he battled with “Caroliniensis,” the collective nom de plume of Isaac Holmes, who had represented the association in Elkison, and Robert Turnbull, author of the Seamen Act and an officer of the association. Another pseudonymous author, “Philo-Caroliniensis,” also joined the fray, attacking Johnson’s “Philonimus” essays.172 In 1827, Turnbull, now writing under the name “Brutus,” published a set of essays titled “The Crisis.”173
The tone of these pieces was unmistakably sectional, although the sections were more varied than a strict north-south delineation. “People in the four great divisions of the United States are divided in sentiment,” Turnbull wrote. “[W]e are a united people it is true—but we are a family united only for external objects.”174 Much of the argument took the form of pointed attacks on Johnson himself, for the supposed perfidy he displayed in holding the Seamen Act invalid. “Caroliniensis” repeatedly sounded this theme; one particularly sharp example came in the emotion-laden conclusion to the sixth essay:
Was there nothing due to the people of Charleston, among whom Judge Johnson was born, and to whom he is indebted for many honors? Would it not at least have been respectful to the people of South-Carolina, and to its Legislature, to have passed sub silentio a question, which was not necessary to the performance of his duty, but which must necessarily inflict a severe wound upon their sensibilities? Or are we to understand, that when a citizen becomes a servant of the General Government, he is to disregard the views, opinions, and feelings of those among whom he was bred, and from whose early notice of him, he perhaps derives the exalted honor of being a Judge of the Supreme Court of the United States?175
Johnson responded with his customary pungent flair. Under his own name, as we have seen, he described the polemics that the association’s lawyers had deployed in the courtroom. Reporting Holmes’s invocation of “dissolution of the Union,” Johnson wrote, “Every one saw me lay down my pen, raise my eyes from my notes, and fix them on the speaker’s face. He still proceeded, and in a style which bore evidence of preparation and study.”176
In his “Philonimus” essays, Johnson parried his opponents’ legal arguments with his own doctrinal analysis. One crux of the dispute concerned the 1803 act of Congress that was at the center of The Brig Wilson, which Marshall had heard on his circuit in 1820, and which Chapter 2 examined. Neither party appears to have raised the 1803 act in the Elkison proceeding, however. Johnson’s critics argued that the 1803 act—which was titled “An Act to Prevent the Importation of Certain Persons into Certain States, Where, by the Laws Thereof, Their Admission Is Prohibited”—insulated South Carolina’s Seamen Act from attacks on its constitutionality.177 By putting federal enforcement behind state laws that prohibited the “admission or importation” of Black seamen, “Philo-Caroliniensis” argued, Congress had implicitly endorsed laws such as South Carolina’s. Indeed, the author claimed, the Seamen Act “is, by act of Congress, made an United States law.”178
Johnson rejected this argument altogether. First, he noted, the 1803 act had not federalized any state laws; it had merely offered federal enforcement to state laws touching on the migration or importation of Black persons. Second, while he acknowledged that “by virtue of the Act of Congress of 1803, the State Act of 1822 is a valid Act as far as an Act of Congress can give validity to it,” the qualification in the final clause raised more questions than it answered. Most important, that clause was limited by the Supremacy Clause of the Constitution: “That is, as far as it does not violate existing treaty stipulations.”179 Given the United States’ treaties with Britain and the increasing pressure from the Foreign Office as well as British officials in the United States, Johnson contended, the Seamen Act could not be valid. The parties to a treaty could not “pass navigation laws which will convert the treaty into a nullity,” he insisted.180
The essays were as forceful as ever, but Johnson’s correspondence suggested that the events of August had left him in a somber mood. Johnson sent copies of his Elkison opinion—which the newspapers still refused to publish, so he had had it printed in pamphlet form—to his confidants around the nation. Writing to Jefferson four days after he rendered his decision in the case, a copy of which he enclosed, Johnson wrote,
I acknowledge to you my dear Sir, that I have sometimes some gloomy Doubts crossing my Mind respecting the Destiny of our beloved Country. … That greatest of Evils Disunion, appears to be losing its Terrors. My Ears are shocked at Times by Expressions that I hear on the subject. I enclose you a Copy of an Opinion which I had to deliver a few Days ago which will excite some Surprise.
Johnson ended by noting that he his decision had earned him enmity from many of his fellow Charlestonians. “I have received a Warning to quit this City. I fear nothing so much as the Effects of the persecuting Spirit that is abroad in this Place.”181
A few weeks later, Johnson sent a copy of his opinion to Secretary of State Adams, which, as we have seen, Adams forwarded to President Monroe.182 In another letter to Adams nearly a year later, in July 1824, Johnson observed that the association was continuing its campaign of legalized persecution of Black sailors. Despite his own Elkison decision and Attorney General Wirt’s opinion, the federal government appeared utterly impotent to effect any change in the state’s enforcement of the Seamen Act. “I am wholly destitute of the power of arresting those measures,” Johnson wrote to Adams:
Both the writs of habeas corpus and injunction I am precluded from using, because the cases assume the form of State prosecutions; and, if I could issue them, I have nobody to call upon, since the district attorney is himself a member of the association; and they have, further, the countenance of five other officers of the United States in their measures. To this I attribute much of the confidence with which these measures are prosecuted.183
At home in Richmond, Chief Justice Marshall learned of Johnson’s Elkison decision, and the ensuing contretemps in Charleston, from the newspapers. “Our brother Johnson, I perc[ei]ve, has hung himself on a democratic snag in a hedge composed entirely of thorny state rights in South Carolina, and will find some difficulty, I fear, in getting off into smooth open ground,” Marshall wrote to Story.184 “You have I presume seen his opinion in the national Intelligencer, & could scarcely have supposed that it would have excited so much irritation as it seems to have produced.” The issue in the case “is one of much feeling in the south,” Marshall observed. “Of this I was apprized, but did not think it would have shown itself in such strength as it has.” The chief justice then contrasted Johnson’s approach with his own in The Brig Wilson. Marshall characterized the state law at issue there—Virginia’s 1793 law barring the migration into the state of “free Negroes and Mulattoes”—as the “twin brother” of South Carolina’s Seamen Act. “I might have considered its constitutionality had I chosen to do so,” Marshall mused. “[B]ut it was not absolutely necessary, &, as I am not fond of butting against a wall in sport, I escaped on the construction of the act.”
Marshall appeared to pride himself on his ability to escape on construction of the act. By so doing, he believed that he had avoided adding “fuel” to “the fire at which the exaltées are about to roast the judicial department.”185 He was likely correct in that assessment, as events in Charleston demonstrated. But unlike Marshall, Johnson could never resist adding fuel to a fire when he believed himself to be in the right.
Johnson’s opinion in Elkison endured, albeit perversely. The case’s immediate significance lay in its inability to be put into action. It was a constitutional decision by a federal court, in which the intended force of federal judicial power was utterly stymied. In the view of some of Johnson’s fellow South Carolinians, the case stood as proof of the state’s power to ignore, or indeed nullify, federal law.
At a Fourth of July celebration held by the State Rights and Free Trade Party in Charleston in 1831, South Carolina U.S. senator Robert Y. Hayne told his audience that a state’s right of nullification was protected by the Constitution, despite critics who charted that it was tantamount to endorsing disunion. In contrast to Hayne’s attack on Johnson eight years earlier, which had so embarrassed Hayne’s Boston dinner-party companions, the senator’s remarks now found friendly listeners. Hayne’s evidence for this proposition was Elkison and its sequelae:
[H]as not South Carolina, by an act of her Legislature in relation to persons of colour coming into this State on board of foreign ships, Nullified a treaty according to the opinion of the late Attorney General, of the President of the United States, and the Federal Judiciary? It becomes a grave question therefore, whether we are not out of the Union now, or are we “in the Union and out of the Union at the same time?”186
For Hayne, as for others who identified themselves with the newly formed State Rights and Free Trade Party, the outcome of Elkison was a victory. South Carolina’s Seamen Act was still being enforced. The state’s legislative will, which in Hayne’s view represented the constitutional judgment of the state’s people, had triumphed not only over some abstract notion of the federal commerce power, but over a formal treaty of the United States. The state’s interpretation of the Constitution effectively canceled out those of the president, the U.S. attorney general, and the federal courts. If a state could thus release itself from the obligations of a treaty, surely it could annul a mere piece of domestic legislation passed by Congress.
In 1832, Johnson again drew the ire of his fellow Charlestonians when he refused to allow the issue of the constitutionality of the federal tariff of 1828, the so-called Tariff of Abominations, to be put to the jury.187 Because the case had been conjured into existence by opponents of the tariff who wished to challenge its validity in court, they viewed Johnson’s decision as a political act depriving them of their chosen arena—which, indeed, it was.
Johnson continued to perform his duties as a justice, including riding circuit, although he began to spend summers outside Charleston. In the summer of 1834, feeling himself exiled from his native state and in pain from “a serious indisposition”—cancer of the jaw—Johnson traveled to New York to seek treatment. On August 4, in Brooklyn, Johnson underwent “the most painful surgical operation,” which he bore “without the aid of friends, or being bound.” Prior to the surgery, the doctor had “expressed his opinion of the inability of the Judge to survive the operation,” but Johnson nevertheless decided to proceed. Within half an hour of the end of the procedure, Johnson died, at the age of sixty-two.188
Johnson’s marker stands in the graveyard of St. Philip’s Church in Charleston, three blocks from the courthouse where he presided, and where he won himself local infamy.189 The marble obelisk, placed by “His Children who loved and valued him most dearly,” bears a lengthy inscription concluding, “His virtue pure his integrity stern his justice exact his patriotism warm and his fortitude not to be shaken in the hour of Death. Conscia Mens recti famae mendacia ridet.”
The final Latin phrase can be translated as “The mind conscious of what is right scorns the falsehoods of rumor.”190 In 1822, when Johnson was being attacked for urging calm and moderation at the height of white Charlestonians’ panic over the Vesey conspiracy, he had stated in print, “My reputation is the property of the United States.” And yet, he noted, “I wish to live in harmony with those who surround me.”191 With a hint of Johnsonian pugnacity, the marker celebrates upright reputation, even as it stands peacefully in the quiet verdancy of the churchyard, among neighbors whose headstones bear storied Charleston names.
A few yards away from Johnson’s obelisk is the grave of John C. Calhoun. The conflict between Johnson’s vision of the Union—as a tripartite contract among the people, the states, and the United States—and what became known as Calhoun’s theory of nullification effectively damned Johnson to exile.
Despite the volume of Johnson’s writings, no major collection of his papers currently resides in any publicly accessible archive. The substantial trove of documents that survived him likely found their way to the state capital at Columbia, where they are believed by his descendants to have been destroyed during the burning of the city in February 1865, when it was captured by the Union Army under the command of General William T. Sherman.192
5 • The Revolutionary Daughter
A Federalism of Inheritance
When William Johnson dug up the roots of Charleston’s Liberty Tree and sent a fragment to Thomas Jefferson in 1817, the justice was asserting a claim to the Revolutionary heritage of the city as well as the nation. Johnson researched the tree’s whereabouts, took physical possession of its remains, and dispatched a piece of it to the Virginia radical who had appointed him to the Supreme Court.
Johnson’s sense of connection to the founding era was both intellectual and emotional. It was also deeply personal, having come to him through his parents’ stories of the great events of the Revolution and the South Carolina ratification convention. As a young man, he was further steeped in living history when he began reading law with General Charles Cotesworth Pinckney. As we have seen, the Pinckney Mansion on East Bay Street was a carefully constructed monument—complete with a temple front on its façade—to the ideals of Anglo-American culture, politics, and law. Those ideals formed a crucial underpinning of eighteenth- and nineteenth-century South Carolinian constitutional ideology.
