Beyond the Southeast

Remembering the Time Andrew Jackson Decided to Ignore the Supreme Court In the Name of Georgia’s Right to Cherokee Land

“John Marshall has made his decision;

now let him enforce it.”

Those are the famous words uttered by President Andrew Jackson in relation to U.S. Supreme Court Chief Justice John Marshall’s 1832 decision in Worcester v. Georgia to strike down a Georgia law that imposed regulations on the comings and goings of white people in Native American land.

This ruling was foundational in establishing the general idea that Native Americans have some degree of sovereignty in their interaction with U.S. governments. The words and actions of President Jackson in relation to the opinion is a historic event exemplifying the ever present debate over state and federal power and the role of the courts in our modern times.

In the spring of 2014 the nation was stricken with Cliven Bundy fever. Mr. Bundy is the Nevadan rancher who not only refused to pay fees to the federal government for the right to graze on federal lands, but also sought an armed conflict with federal officials. It briefly ignited a debate over the role of the federal government in land management and ownership, particularly in western states where the federal government owns a large percentage of the land. The debate didn’t last long, possibly because of Mr. Bundy’s own antics and personal beliefs and possibly because the right of the federal government to assert such powers has long been established.

The spat between President Andrew Jackson and Chief Justice John Marshall is an interesting hiccup in nation’s evolving belief that the US Supreme Court has the authority to decide whether laws are constitutional. The conflict centered on arguments over states’ rights as well as land ownership and use policies, but it also brought into question the entire idea of judicial review. The power of the US Supreme Court to interpret the US Constitution and review federal and state laws to ensure compliance is generally something we don’t question today; it’s fundamentally essential to the smooth operation of the country. Well back at the time of the Worcester decision, this idea wasn’t so fundamental.

Putting The Supreme in Supreme Court

Thirty years prior to Worcester, the US Supreme Court issued what was arguably the most important opinion in the history of the bench. In Marbury v. Madison, the same Chief Justice John Marshall ruled that the Supreme Court is vested with the power of judicial review; it has the ability to determine that a law is at odds with the US Constitution and therefore invalid. Today we view this power as one of the important “checks” on the government’s lawmaking ability. After all, if the courts cannot decide that a law is incongruous with the Constitution then who can? The politicians who made the law?

Establishing judicial review was especially important for the Court since it made the judicial branch highly relevant. The decision strengthened the separation of powers between the three branches and made the Constitution the cornerstone of lawmaking throughout the country. But the Court had to walk a fine line in establishing judicial review. At the time, the Supreme Court was a fledgling entity that had little relevance and whose daily functions were at the whim of whatever party was in power.

See Related Article: Why Law Professors on the Right and Left Think Adding More Justices and Ending Lifetime Tenure Could Vastly Improve the Supreme Court

In 1800 Thomas Jefferson defeated John Adams to become the third President of the United States. The two were bitter rivals as Adams was the leader of the Federalist Party and Jefferson was the leader of the Democratic-Republican party. Prior to leaving office, Adams appointed many like-minded people to federal courts across the country as a means of preserving his party’s influence on policy. However, the letter of commission for one William Marbury for Justice of the Peace of the District of Columbia was not delivered to him prior to Adams leaving office and Thomas Jefferson had no intention of delivering it.

That gave way to William Marbury filing a lawsuit under the Federal Judiciary Act of 1789 to force Jefferson’s Secretary of State, James Madison, to give him his commission.  The Act allowed him to file the suit directly in the Supreme Court, where Chief Justice John Marshall was waiting with open arms. This was the opportunity he had been waiting for that would allow him to make the Supreme Court much more relevant.

But the situation was tricky. Although Marshall was political allies with John Adams, he realized he needed to reach a decision that President Jefferson would want to enforce. Since the Supreme Court at that time had a fraction of the significance it has today, the president was largely free to ignore the ruling of the Court without suffering political or popular harm.

Marshall began his opinion by stating that William Marbury was entitled to his commission; Secretary of State Madison had no discretion to withhold carrying out the lawful appointment of Marbury as Justice of the Peace. However, in a stroke of genius, Marshall dismissed the claim on procedural grounds, stating that the US Constitution did not give Congress the authority to enact a law that allowed William Marbury’s type of lawsuit to be filed directly in the US Supreme Court; such a suit would have to work its way up the court system prior to reaching the Supreme Court. Marshall was able to satisfy his political party by declaring Madison’s actions to be improper while simultaneously delivering a final ruling that pleased Jefferson enough to make him want to enforce it.

Fast forward to 1832. Having firmly established judicial review with the ruling in favor of Jefferson’s administration in Marbury v. Madison, Chief Justice Marshall was free to rule against the new sitting president, Andrew Jackson, right? Well perhaps thirty years isn’t enough time to let something set, especially when you’re dealing with someone like Andrew Jackson.

Georgia VS the Cherokee Nation

Cherokee Territory

Cherokee Territory

Throughout the 1820’s Georgia worked tirelessly to remove the Cherokee Indians from their lands in the northern part of the state. It enacted laws that extended its jurisdiction over Cherokee territory, acquired tribal lands, and attempted to redistribute that land to non-native residents. Andrew Jackson was elected president in 1828 and joined Georgia in its quest to remove the Cherokee and other Native Americans from their land.

In 1831 the Cherokee Nation challenged the Georgia laws in the US Supreme Court. Similar to the procedural grounds upon which Marbury v. Madison was dismissed decades earlier, the Court declined to the hear the case on its merits. In Cherokee Nation v. Georgia, the Court held that, since the Cherokee Nation was a “domestic, dependent nation” and not a foreign nation, the Court lacked jurisdiction. 

But a man named Samuel Worcester would throw a wrench in that decision. A minister from Vermont who worked as a missionary with the American Board of Commissioners for Foreign Missions, Worcester was assigned a post within the Cherokee Nation and took up residence in the Cherokee capital of New Echota. Worcester not only taught the Cherokee the words of the Bible, but advised them of their legal rights. Unsurprisingly, this sparked outrage from Georgia leaders as they saw Worcester as a linchpin in the Cherokee resistance. This prompted the state to enact licensing laws regulating how white people moved to and from the Cherokee lands. As a white person residing in Cherokee land without a license, Worcester and several other missionaries were retrieved from Cherokee land and imprisoned.

This resulted in another showdown in the US Supreme Court. In Worcester v. Georgia, the Court seemingly reversed Cherokee Nation v. Georgia, holding that Indian nations were sovereign nations with inherent natural rights to land. As the Constitution grants the federal government the exclusive power to negotiate treaties with foreign nations, Georgia’s laws were in direct conflict with the US Constitution and with existing treaties. The Court even cited previous pieces of Georgia legislation, including the Act of Cession of 1802, showing that the state had acknowledged the idea that Indian nations have a full right to the territory they occupy and that this right can only be extinguished in negotiation with the government of the United States.

Painting by Robert Lindneux Depicting the Trail of Tears

Painting by Robert Lindneux Depicting the Trail of Tears

Enter Andrew Jackson. Two years prior to the Worcester decision, he successfully convinced Congress to pass the Indian Removal Act. Despite his strong belief in states’ rights and the power of each state to govern its own jurisdiction, the Act created a scheme which gave the president jurisdiction over Indian-state relations. This included the right to grant land west of the Mississippi River to Native Americans following negotiations with the tribes for their removal from eastern areas. Ultimately, Jackson wanted to remove the Native Americans from their land regardless of whether the means were in accordance with his own political beliefs. Unsurprisingly, when the Worcester decision was announced Jackson wasn’t too pleased.

“John Marshall has made his decision; now let him enforce it.”

Though President Jackson’s exact words were a bit different, the sentiment remained. Enforcing the ruling would mean not only deviating from his own ideology, but alienating a state that shared his core beliefs. So he decided to undermine the system of checks and balances and ignore the ruling. Without the president’s enforcement of the Supreme Court’s ruling, the opinion largely meant nothing. Samuel Worcester remained imprisoned in Milledgeville and the militia of Georgia was free to encroach on Cherokee land.

The Worcester opinion should have given the Native Americans much more leverage in future negotiations with the federal government. The decision, after all, established some degree of sovereignty and revoked the states’ ability to take part in such negotiations. However, it had little effect since neither the President of the United States nor the State of Georgia showed any acknowledgement of the ruling. Subsequently, in 1835 the Cherokee Nation signed the Treaty of New Echota which would effectively remove them from Georgia. The US Army promptly initiated the Trail of Tears, forcibly relocating over 15,000 Native Americans from Georgia to Oklahoma. Over 4,000 lost their lives on the journey.

Eventually the Georgia licensing law was repealed by the Georgia legislature after generating a public outcry over the continued imprisonment of missionaries and at the behest of new Governor Wilson Lumpkin.

While the Supreme Court has historically applied different theories of sovereignty based on the issue, the underlying idea of Worcester remains intact: any diminution in sovereignty is reserved as an issue for the federal government, not the states. A state cannot interfere with internal tribal affairs unless the federal government has granted such authority; whether this power has been granted is a decision for a federal court.

Nacoochee Mound Near Helen, GA

Nacoochee Mound Near Helen, GA

Ultimately, the actions of President Jackson to not recognize the opinion in Worcester had profound implications for Native Americans and for Georgia. Much of our lands in the Southeast and throughout the country bear the names of Native Americans and, being as such, these placemarks offer glimpses into a troubled yet rich history and lessons we should’t forget.

In the end, Andrew Jackson’s story reveals the ease at which the foundation of our governmental structure can be eroded. One person, in a powerful position, deciding to challenge the political and legal norms that we’ve come to rely on can have a profoundly negative impact on the integrity of our legal and political system.





On July 28 2016 this article was edited to include additional discussion regarding Marbury v. Madison.


22 replies »

    • I think you probably meant ‘servant’ . But Obama has always been a public servant. He tried to get health care for poor people and to protect minorities. He still thinks that the very wealthy should pay their fair share of taxes. I think he deserves our praise. He also deserves a rest. But if he wants to help us repair the damage caused by that sick man currently in the White House. I’d welcome him.

      • Barack Obama did not try to get health care for anyone. All he did was attempt a federal takeover of 1/7 of the American economy. He failed. The Republic will be stronger for it.

  1. If the founders intended on giving the Supreme Court the freedom to interpret the Constitution, they certainly wouldnt have given them life time appointments. Judges decide disagreements of law and Equity, not the law that Congress makes and the Executive signs into Law.

  2. Article III Section II of the Constitution also states that the judiciary shall have the power to hear all cases arising “under the Laws of the United States.” If the Constitution is not considered the “Law of the United States” then there is little point in having a Constitution. In order to settle disagreements based in law and equity or disagreements arising “under the laws of the United States” the judiciary must be able to interpret laws created by Congress and signed by the Executive as those are certainly considered “laws of the United States.”

  3. “right to graze on federal lands” The federal government doesn’t own any lands, anything the federal government owns is in fact owned by the people. I have a feeling you wish the government would forcibly collectivize all lands, though.

    “the judiciary must be able to interpret laws created by Congress and signed by the Executive as those are certainly considered “laws of the United States.”

    Oh so you believe the founders intended for people like RBG to interpret the 14th amendment to mean a woman has a right to abort her own baby at any time for any reason? Please stop. The founders never intended for a bunch of unelected ideologues with lifetime appointments to create law out of thin air as they are doing now. The founding fathers would abolish the supreme court if they were alive today.

  4. Note to readers: Roe v. Wade was a 7-2 decision written by Justice Blackmun, a Richard Nixon appointee. RBG (Ruth Bader Ginsburg) was not on the Court at the time of the decision.

    The founders intended for the Constitution to be amended; we know this because they specifically included instructions as to how to amend it in Article V. The people then amended the Constitution by ratifying the 14th Amendment. If one’s method of interpreting the Constitution is to ask what the founders meant, then the correct analysis of the 14th Amendment would not be to ask how the original founders would interpret the 14th Amendment, but how the people who ratified the 14th Amendment would interpret the 14th Amendment. If the founders meant for us to always ask what they would have thought then why would they have allowed the Constitution to be amended to overturn what they originally put in place?

    The standing doctrine requires an actual controversy to exist in order for a court to hear a case. That alone necessarily means a law is not “created out of thin air” by a court. In terms of interpreting the Constitution, courts are only striking down laws that violate the Constitution, not creating new laws. This means that they are upholding rights that already exist. If the Constitution is supposed to have any weight on guiding what the legislature can do then the courts must be able to enforce the Constitution against the legislature. This necessarily requires interpreting the Constitution. The founders seem to have envisioned this because they stated how the Constitution could be amended. If no one checked the legislature and the legislature could pass whatever laws they wanted then there would be no point to the Constitution and it would have been meaningless for them to state how it could be amended.

    • After several decades spent responding to lawyers’ briefs, it appears to me that you greatly underestimate their creative gifts. When left with such vague guidelines as the “fundamental fairness” required by the due process of the 5th and 14th Amendments, the results of their analyses is virtually unlimited. A reasonably intelligent Justice can make the Constitution mean whatever they would personally like it to mean. It seems to me that the Founding Fathers were a pretty savvy crew, intent on constructing a three branched democratic government, with no one branch able to control the other two. It is unimaginable to me that they intended to create a system in which one branch could tell the other two what they could do, and then make matters worse by giving them lifetime tenure.

    • If you will read the declaration of ratification of the 14th amendment I think you will see that it was Congress that ratified the amendment Congress had proposed. Congress decreed that the proposed amendment was ratified and commanded the secretary of state to publish the declaration.
      Why bother with constitutional procedures to propose and ratify amendments when Congress can do its own ratification.
      The Supreme Court refuses to consider objections to ratification procedures, calling questions of ratification and non-ratification “political.”

  5. SustainAtlanta- You ignore some of the most obvious dynamics in your argument. First, as you point out, the approved method of altering the Constitution is by the Amendment process, not an “interpretation” biased by political views and agenda. If one does NOT use the original intent- as clearly documented in writings, debates, discussions and speeches from contemporary times- then one is clearly advocating an “interpretation” based on what current judges or justices want the language to mean based on their personal politics and agendas. Which, by the way, is exactly what is happening quite frequently, hence the legitimate accusation that the courts are legislating without authority.

    Second, you carelessly ignore the fact that the check upon both legislative and executive branches resides in the people, at the ballot box. How ignorant do you think we are out here? Did you think there are none who see through your devious and dishonest arguments? You are not as clever as you think.

    Certainly the 14th Amendment should be interpreted based on the intent of the men who wrote and passed it. If only that was happening, we would not have such travesties as “birthright citizenship” as the courts have forced upon us in modern times. The author of the 14th clearly stated that this Amendment was not written to cover the children of aliens without legal status in the country. That is documented intent which was stepped on and ground into the dirt by judges with a political agenda. You may like that dynamic, but it is contemptible.

    So enough with your superiority complex, and get a clue. Only the ignorant are persuaded by your disingenuous arguments. While President Jackson may have suffered from the common attitude of his time that the Indians were not worthy of treatment befitting American citizens- the Removal Act is a very nasty business- yet he was absolutely correct in the principal of ignoring a Supreme Court that was overreaching its authority. There has to be a check on the Judiciary itself- and you completely ignore that this is even an issue. Well, it is. Nothing in the Constitution gives the Judicial Branch superiority over the other two. Marbury v Madison should have been ignored then and it should be today. A dispute over law, as defined in the Constitution is a matter of legislation, not the Constitution. I know you know the difference, but you do not display the honesty or integrity to say so, as it would not fit with your political bias and agenda.

    • So if not the Judicial Branch, in a tripartite system of Gov’t, which of the 2 remaining branches should serve as the ultimate arbiter on question of how to properly interpret Constitution, & have authority to declare laws (which are passed by Congress, & signed into law by the Chief Executive) as “Constitutional”?

      Which Branch should have the final say to decide Constitutionality of Executive Orders?

      If you say either Legislative or Executive, you might want to retake HS Civics, since you seemingly missed the concept of branches serving as “checks & balances” on the others.

  6. Jackson’s refusal to follow the Supreme Court ruling was not “a historic event exemplifying the ever present debate over state and federal power”, but rather the repudiation of his oath of office by a small-minded, prejudiced man. Even at that early date, the Constitution was clear that a state had no legitimate power to nullify an act of Congress or to ignore a Supreme Court decision. Jackson’s treason led directly to the Trail of Tears, one of the most shameful chapters in American history.

    • Jackson’s treason led directly to the Trail of Tears? How?

      The Trail of Tears was the “removal” of the first contingent of Choctaw in November, 1831 — almost a year before Jackson wrote to John Coffee discussing the court’s decision in Worcester vs. Georgia.

      The name comes from a quote in the Arkansas Gazette, where a Choctaw Minke referred to the ordeal as “a trail of tears and death.”

  7. So basically we should believe Jackson is a bad guy for refusing to accept a great power that the court gave itself? “Oh but it is implied”. This is the constitution, you don’t just get to imply yourself power. If the courts wante judicial review, they should have asked Congress to pass a law giving it to them.

    Because Jackson refused to accept it, you consider him a rogue official? Give me a break.

  8. You know this article is pure balony. Jackson did not “utter” such words, nor did he refuse to support the court.

    In a private letter to John Hayes, he said, “The Supreme Court’s ruling seems to have died a-borning and the court will have difficulty enforcing it.”

    Jackson did not refuse to support the court — he was never ASKED to send Federal Marshalls, and he could not do so unilaterally. The crisis at the time was the Nullification Crisis where South Carolina claimed to have the power to nullify Federal laws within their borders. Neither Jackson nor Marshall wanted a Civil War — and they could have easily sparked one by using force against both Georgia and South Carolina.

  9. Jackson’s remark is cut from the same warp and weave as Stalin’s “How many divisions does the pope have?” Unlike Congress or the executive, the Supreme Court breathes life into the notions imbued in the Constitutions Bill of Rights. i.e. That even the rights of an unpopular minority (e.g. flag burners) are protected. Were it not so, the Bill of Rights would have been moot under the assumption that in a democracy, the majority could protect itself. As it stands, the rights of minorities are preserved in the Constitution’s language so long as the Supreme Court is respected for its role in interpreting it according to the doctrine of original intent. The Founders hoped demagoguery would fail against that bulwark. Still, it is a fragile shield as noted here.

  10. The author is full of crap when he writes “So he decided to undermine the system of checks and balances and ignore the ruling.” Jackson’s understanding of the separation of powers among 3 coequal branches of government and his action to ignore the Court is a DEFENSE of checks and balances! Jackson checked the Court by using the Constitutional separation of executive power from judicial power. The Court can NOT order the Executive to do anything nor can the Court enforce its opinions. The Executive’s law enforcement power is a Constitutional check on the Court and Jackson understood that. The author of this article does not understand this fundamental Constitutional principle and instead believes the President is subservient to the Court. He is not.

    • Cory – checking the court is changing laws, amending the Constitution, and impeaching judges. The legislative branch is fully entitled to do all of those item without any action from the executive branch while the executive branch can do none of those things without the legislative branch.

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