John Marshall, and the Justice of Anti-Sympathy

by zunguzungu

I’ve been reading around in “The Cherokee Nation vs. The State of Georgia,” a Supreme Court case from 1831 (which you can read here), and although I was just trying to get my bearings with respect to early nineteenth-century American juridical procedure on native dispossession (because I’m interested in late nineteenth-century American juridical dispossession of natives), I’m uncovering more strange and interesting stuff than I know what to do with, or even blog about. It’s an important case because it’s one of the ones where John Marshall* laid out the answer to the question of what rights American Indians had to sovereignty over the land they were living on. The answer, it will perhaps not surprise you to learn, is “not much.” But the way he gets there is fascinating, and instructive, and the words “Guantanamo Bay” floated through my mind many a time as I read, though I leave that connection to you, dear readers.

As he puts it, the Cherokee Nation had applied to the Supreme Court:

“praying an injunction to restrain the state of Georgia from the execution of certain laws of that state, which, as is alleged, go directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force.”

The Supreme Court, in other words, was being asked to mediate between a state within the union and an Indian nation. But the status of “the Cherokee nation” was basically unclear. Were they a “state” like Georgia (within the union) or were they a “state” located outside the American union? Neither alternative seemed right to Marshall, yet everything depended on the answer. If the Cherokee nation were a foreign state, then the treaties drawn between them and the US government would be binding, and Georgia’s encroachments on their territory would have to be repudiated. Yet (clearly) the Cherokee nation could not be considered part of the union, not having been part of the original constitution or subsequent additions to it (even putting aside the manifest unacceptability of the notion that an Indian political society could be an organic part of the American state).

I suspect, however, that both options were unacceptable for this very basic reason: ruling the Cherokee nation to be either foreign state or domestic state would entitle them to standing in the court, and necessitate taking their suit seriously. John Marshall had no interest in doing that, since, as he forthrightly admitted, they had a strong argument. In his words:

“If courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined. A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands by successive treaties, each of which contains a solemn guarantee of the residue, until they retain no more of their formerly extensive territory than is deemed necessary to their comfortable subsistence.”

It’s worth pausing briefly over the interesting place “sympathy” comes to occupy in this argument: as he acknowledges, if we regard the Cherokees as human beings, our sympathies will lead us to regard their plight as pitiable and we will seek to do justice to them, and for them. And it’s especially interesting, given the prominence of “sympathy” as a philosophical concept in the late eighteenth and early nineteenth century, that he opens his case by forthrightly admitting that while sympathy would lead courts to follow one course, in fact, courts are specifically not “permitted to indulge their sympathies.” We have, in other words, two very distinct kinds of justice being distinguished, a difference between the kind of justice urged by sympathy — by the consideration of Indians as human beings — and the kind of juridical reasoning which begins by explicitly setting aside such considerations, by explicitly disregarding the Cherokees’ status as human.

It‘s telling, then, that he follows the second course, arguing “[b]efore we can look into the merits of the case, a preliminary inquiry presents itself. Has this court jurisdiction of the cause?” Sympathy has to be disregarded while the Supreme Court’s standing to decide (dictated by the Cherokee nation’s standing) was determined. And when he eventually decides that, in fact, the Cherokee nation is neither a foreign state nor part of the union (in other words, it is neither excluded nor included ), he determines that Cherokee motion for an injunction has to be denied not for reasons of justice, exactly, but simply because:

“If it be true that the Cherokee nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.”

There was no other tribunal, of course, and everyone knew that. Denying the Cherokee nation standing in the court amounted to awarding the state of Georgia the legal sanction to do whatever they wanted, and the fig leaf of “not our jurisdiction” fooled no one. But notice that he never makes the argument that the Cherokee lack rights (as he denies them right to sue for them) or that they haven’t been wronged (as he denies them redress). The opposite, in fact, is true: he explicitly acknowledges that they have a solid claim to our sympathies in order, then, to argue that sympathetic appeals to justice on behalf of Indians are categorically excluded from the kind of justice which the American system is “permitted to indulge.” The justice which he represents and enacts, in fact, is precisely the opposite, defined by the first principle of not acknowledging its subjects’ status as human beings.

* My father teaches at Marshall University, named for John Marshall, and I’ve walked past this statue of his honor on the campus quite a few times. So it’s with a certain personal interest that I’ve read commentators on this case (and on the others in which Marshall established the legal case for the dispossession of native land) who’ve noted that Marshall himself made his fortune (like many of the other early founders) on land appropriated from American Indians, in his case from land in Western Virginia (now West Virginia), where Marshall University is presently located.