Bonus 129: What Really Happened in Worcester v. Georgia?

President Jackson's famous quote about Chief Justice Marshall is almost certainly apocryphal. Understanding the specific context in which it (allegedly) arose helps to underscore why.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of Thursday’s bonus content behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

I thought I’d use today’s bonus issue for something a little different—a topic that is not totally unrelated to current events, but is at least somewhat tangential to them. In particular, the subject was inspired by University of Chicago law professor Alison LaCroix’s fantastic new book, “The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms.” The book is a tour de force through the major cases and constitutional disputes of the period between the end of the War of 1812 and the Civil War—offering a detailed and well-defended argument that, rather than a straight binary conflict between federal and state power, the “interbellum” era featured far more nuanced understandings of (and flash points for) “federalism,” most of which have been lost to modern understandings. As part of that survey, it includes, in two of its chapters, a careful look at the multifaceted, federalism-infused disputes between the United States, Georgia, and the Cherokee Nation in the late 1820s and early 1830s (what LaCroix calls “a federalism of fractals”).

That dispute, at least from the Supreme Court’s perspective, culminated with the 1832 ruling in Worcester v. Georgia. And it’s that ruling that is claimed to have provoked President Andrew Jackson into saying “John Marshall has made his decision, now let him enforce it.” This quip is hauled out whenever someone wants to suggest that presidents have previously defied Supreme Court rulings. But as I suggested in a recent post, it is almost certainly apocryphal. The apocrypha claim is based not only on the absence of any contemporaneous record of Jackson saying it, but on the fact that, with a proper understanding of what the Supreme Court did in the Worcester case, it wouldn’t have made any sense; neither Jackson nor the federal government were parties to the dispute—which was about the validity of a Georgia criminal statute.

Jackson was certainly one of the players in the broader context surrounding the Worcester decision. And in an April 1832 letter to his close friend John Coffee, he wrote about the difficulty the Court’s decision in Worcester had encountered on remand. But attempts to hold Worcester out as an example of presidential defiance of the Supreme Court can’t be reconciled with either the historical record or common sense.

For those who are not paid subscribers, we’ll be back on Monday with our regular coverage of the Court. For those who are, please read on.