10 February 2019

"Marshall has made his decision: now let him enforce it"

The attorneys for the missionaries sought to have this judgement enforced, but could not. General Jackson was President, and would do nothing of the sort. "Well: John Marshall has made his decision: now let him enforce it!" was his commentary on the matter. So the missionaries languished years in prison, and the Cherokees were finally (1838) driven into exile, in defiance of the mandate of our highest judicial tribunal.
Horace Greeley, The American Conflict (1864), 106.
Some high school civics textbooks report a Constitutional crisis in the wake of the U.S. Supreme Court decision Worcester v. Georgia (1832). The issue in the case was Georgia law requiring a license from the state and an oath of allegiance to the state constitution for non-Indians living and working among the Cherokee. The bulk of the Cherokee Nation fell within the state boundaries of Georgia; the state sought to exercise its sovereignty over these lands. Samuel Worcester and Elizur Butler, missionaries among the Cherokee, refused to comply with Georgia's laws, were tried and convicted, and appealed their case to the Supreme Court. Chief Justice Marshall wrote the decision, which affirmed the sovereignty of the Cherokee Nation.
The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of Congress.
Worcester v. Georgia 31 U.S. 515, at 520
Marshall's decision, along with one nine years earlier (Johnson v. McIntosh) and one the previous year (Cherokee Nation v. Georgia) form the foundation of Federal Indian Law. The so-called Marshall Trilogy of cases has been celebrated and condemned and been the subject of countless books.

For the past few decades, I have occasionally checked high school civics and American government texts for how much space they devote to notions of tribal sovereignty, or to other Indian matters. The fishing rights cases of the 1970s sometimes appear, and sometimes there is a little bit about the American Indian Movement. However, the notion of tribal governments as sovereigns rarely makes an appearance. When Worcester v. Georgia is mentioned at all, Greeley's fabrication is the most frequent point.

Patriots and Peoples began as a blog concerned with two US history texts, one unabashedly liberal, and the other equally partisan on the right. Both mention Worcester. Jackson's alleged words appear no where in the historical record prior to Horace Greeley's 1864 book, published 32 years after the event.

Larry Schweikart and Michael Allen reveal no evidence of skepticism of the quote's authenticity:
Marshall's Court stated that Georgia could not violate Cherokee land rights because those rights were protected under the jurisdiction of the federal government. Jackson muttered, "John Marshall has made his decision, now let him enforce it," and proceeded to ignore the Supreme Court's ruling.
A Patriot's History, 208
Howard Zinn does not pass on the quote, but makes reference to the putative Constitutional crisis:
John Marshall, for the majority, declared that the Georgia law on which Worcester was jailed violated the treaty with the Cherokees, which by the Constitution was binding on the states. He ordered Worcester freed. Georgia ignored him, and President Jackson refused to enforce the court order.
A People's History, 141
The conservative Schweikart and Allen and the liberal Zinn both cite as a leading source for these events the book Fathers and Children (1975) by Michael P. Rogin. It a strong testament to Rogin's scholarship that both skewed histories choose his work as the foundation for their claims.

Where Zinn differs from Schweikart and Allen becomes evident in what follows. Two paragraphs later in Zinn and the next sentence in Schweikart and Allen, we find contrasting interpretations of Jackson's views regarding states' rights, but neither highlights tribal sovereignty.
The same year Jackson was declaring states' rights for Georgia on the Cherokee question in 1832, he was attacking South Carolina's right to nullify a federal tariff.
A People's History, 141 
Ultimately, the Cherokee learned that having the highest court in the land, and even Congress, on their side meant little to a president who disregarded the rule of law and the sovereignty of the states when it suited him.
A Patriot's History, 208
I need to sit down with Rogin's book to examine whether he proceeds in either of these directions. I am also curious how he sources the claim. Greeley's own deployment of the alleged words 32 years after the event in question stretch the bounds of credibility. Questions drive me.

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