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Cohens v. Virginia (1821)

Last Updated: 2006

The power the Supreme Court possesses to decide cases in which a state is a party conventionally dates from Cohens v. Virginia (1821). This case was an appeal from a state court decision fining Philip and Mendes Cohen $100 for selling out-of-state lottery tickets in violation of state law. When the Supreme Court announced that argument would be held on the validity of the conviction, the Virginia legislature took the unusual step of instructing state lawyers to argue only the jurisdictional point, and that the Supreme Court could not adjudicate appeals in cases when a state was a party. Such a practice, in effect, would immunize state criminal trials from federal review.

John Marshall’s opinion for the Court rejected Virginia’s jurisdictional pretenses, concluding that states enjoy no sovereign immunity from federal judicial processes. “[A] case arising under the constitution or laws of the United States,” the chief justice asserted, “is cognizable in the Courts of the Union, whoever may be the parties to that case.” A literal reading of Article III, Section 2, did suggest that the Supreme Court was limited to exercising original jurisdiction over cases in which a state was a party. Nevertheless, the justices rejected that claim and Virginia’s further claim that the Eleventh Amendment prohibited federal courts from adjudicating an appeal from two citizens of Maryland who were convicted of a criminal offense by a Virginia court. The constitutional ban on extending “the Judicial power of the United States . . . to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State,” Marshall stated, did not bar federal jurisdiction when a state initiated a suit or criminal prosecution against a citizen of another state. Cohens reaffirmed the judicial power to declare state laws unconstitutional that Justice Joseph Story had previously defended in Martin v. Hunter’s Lessee (1816). Letting localities resolve constitutional controversies for themselves, Marshall asserted, “would prostrate . . . the government and its laws at the feet of every state” by giving “each member . . . a veto on the will of the whole.”

Common claims that Cohens and Martin v. Hunter’s Lessee established federal judicial power to declare state laws unconstitutional and reverse state appellate courts need some revision. The Marshall Court did assert these powers in those opinions. The justices in Cohens, however, avoided open conflict with Virginia by ruling that, although they had the power to reverse a state criminal conviction, state criminal convention in the case before the justices was valid. When antebellum federal courts decided against states, the judicial ruling was frequently ignored. The Civil War probably did more than any judicial decision to establish federal power over state governments.

SEE ALSO: Marshall, JohnMartin v. Hunter’s Lessee


Mark Graber, “The Passive-Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Review,” Constitutional Commentary 12 (1995): 67; and G. Edward White, The Marshall Court and Cultural Change, 1815–1835, abridged ed. (New York: Oxford University Press, 1991).