ight prove to be for many years an "excellent barrier to the
encroachments and oppressions of the representative body."[9]

I infer that Hamilton and many other Federalists reasoned somewhat thus,
not only from what they wrote, but from the temper of their minds, and,
if they did, events largely justified them. John Jay, Oliver Ellsworth,
and John Marshall were successively appointed to the office of Chief
Justice, nor did the complexion of the Supreme Court change until after
1830.

What interests us, however, is not so much what the Federalists thought,
or the motives which actuated them, as the effect which the clothing of
the judiciary with political functions has had upon the development of
the American republic, more especially as that extreme measure might
have been avoided, had Pinckney's plan been adopted. Nor, looking back
upon the actual course of events, can I perceive that, so far as the
movement toward consolidation was concerned, the final result would have
varied materially whether Congress or the Supreme Court had exercised
control over state legislation. Marshall might just as well, in the one
case as the other, have formulated his theory of a semi-centralized
administration. 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 touch