He would only have had uniformly to sustain Congress, as
an English judge sustains Parliament. Nor could either Congress or the
Court have reached a definite result without an appeal to force. Either
chamber might expound a theory, but nothing save an army could establish
it.
For two generations statesmen and jurists debated the relation of the
central to the local sovereignties with no result, for words alone could
decide no such issue. In America, as elsewhere, sovereignty is
determined by physical force. Marshall could not conquer Jefferson, he
could at most controvert Jefferson's theory. This he did, but, in doing
so, I doubt if he were quite true to himself. Jefferson contended that
every state might nullify national legislation, as conversely Pinckney
wished Congress to be given explicitly the power to nullify state
legislation; and Marshall, very sensibly, pointed out that, were
Jefferson's claim carried into practice, it would create "a hydra in
government,"[10] yet I am confident that Marshall did not appreciate
whither his own assertion of authority must lead. In view of the victory
of centralization in the Civil War, I will agree that the Supreme Court
might have successfully maintained a position as arbitrator touching
conflicting jurisdictions, as between the nation and the states, but
that is a different matter from assuming to examine into the wisdom of
the legislation itself.
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