Page 75 - Cityview Magazine - July/August 2017

Judges, Jackson, and the Cherokee
How a president’s refusal to enforce a Supreme Court ruling led to the Trail of Tears.
BY GARY WADE
In 1787 and 1788, Alexander Hamilton,
James Madison, and John Jay, using the pseudonym Publius, authored a total of
85 editorials promoting the adoption of a United States Constitution—what came to be known as The Federalist. Hamilton, who is believed to have written 51 of the essays and who joined with Madison on three others, forcefully advocated for an “independent judiciary,” with the hope that lifetime terms, conditioned only upon good behavior, would insulate judges from the political pressures of the executive and legislative branches of government. “Federalist #78,” far and away the most often quoted by the United States Supreme Court, describes the ideal judiciary as the “least dangerous” branch, having
“no influence over either the sword or the purse...It may truly be said to have neither FORCE nor WILL but merely judgement...”
Of course, Hamilton’s recommendations were incorporated in the 1789 United States Constitution. In consequence, federal judges have always received lifetime appointments, based upon the theory that the judiciary should not be beholden to either the Congress or the President in the application of the law. The states chose different paths. For example, when Tennessee adopted its constitution in 1796, the legislature was granted the power to create courts and appoint judges as needed. Andrew Jackson was one of three appointed to serve on
what was called the Superior Court, then the highest in the state. Beginning in 1798, he served in that capacity for six years. Our state supreme court, elected for eight year
terms, did not come into being as our third branch of government until Tennesseans ratified the 1834 Constitution. By then Jackson was the President.
In the 1803 case of Marbury v. Madison, perhaps the most important opinion in the history of the judiciary, Chief Justice John Marshall wrote that the Supreme Court held the exclusive power of judicial review. That is, as a means of checks and balances among the three branches of government, the high court had the final authority to interpret legislation and decide whether
an enactment by the Congress violated the terms of the United States Constitution. Today, that understanding of the role of the federal courts has become universal. During Jackson’s early years as president, however, that was not necessarily so.
In the 1820s, the State of Georgia began to claim jurisdiction over Cherokee territory, passing laws designed to remove the tribe from its lands in the northern portion of the state. Sworn into office in 1829, President Jackson supported Georgia’s efforts. By 1831, however, the Cherokee had filed
suit, challenging the Georgia laws as in conflict with its treaty with the United States. Describing the Cherokee Nation as a “domestic dependent nation,” the Supreme Court dodged the treaty question because the tribe did not qualify as “foreign.”
A minister from Vermont by the name of Samuel Worcester refused to allow the issue to go unresolved. After being assigned as
a missionary to a post on Cherokee lands, he established residency in the capital
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