The question under consideration in Worcester v. Georgia, 1832, was Cherokee sovereignty. Did a Georgia state law that led to the imprisonment of Samuel Worcester and ten other missionaries violate Cherokee sovereignty?
Cherokee leaders were sure that it did, based on treaties that went back thirty years and more. Georgians of all stripes knew little of the legal issues and cared even less. They encroached on Cherokee land and, as significantly, Cherokee sovereignty. In the 1820s, the Georgia legislature passed a myriad of intrusive laws, including a statute that required all whites (read: those pesky missionaries) living among the Cherokee to take an oath of allegiance to the state of Georgia. Worcester refused. He was captured and sentenced, along with ten others, to four years hard labor.
Defenders of Cherokee sovereignty had found their plaintiff with standing and their test case for sovereignty. The Supreme Court under Chief Justice John Marshall was unequivocal in its summation:
“The Cherokee Nation then is a distinct community, occupying its own territory…. The laws of Georgia can have no force and…the citizens of Georgia have no right to enter but with the assent of the Cherokees…. The Act of the state of Georgia is subsequently null and void…repugnant to the constitution, laws and treaties of the United States.”
President Andrew Jackson, who two years earlier had introduced a bill for Cherokee removal, demurred. “John Marshall has made his decision. Let him enforce it,” he famously said. Give Jackson credit. He put his finger on the nub of the problem. Constitutional, federalized government requires good faith participation from all parties.
Today, courts have supported sanctuary cities’ challenge to Trump’s immigration policy. Will the Trump administration follow this ruling or deny funds to cities that don’t enforce its dictates? If a future ruling goes the other way, will dissenting cities accept the decision? Or, if thwarted, will the one challenge the other to, “Let ’em enforce it.”
Meanwhile, at the level of the individual citizen, as many as three hundred thousand Americans, to varying degrees of intensity, question the very legitimacy of the U. S. government. Together, these loosely affiliated resistors make up a so-called sovereign-citizen movement. Not very sizable, you say. Not coherent or broadly appealing. Yet an anti-government streak runs wide and deep in the American psyche. Resistance and conflict seem as likely as not to inhabit our immediate our future.
The challenges of self-government are never resolved once and for all. Questions of sovereignty–nation, state, individual–are forever being adjudicated. Only the rule of law, in all its imperfections and infused as it nevertheless is with the struggle for power, can ward off the centrifugal forces that would fling us apart. As Yoni Applebaum wrote in this month’s Atlantic, words I read just last night before falling asleep: “Willingness to adhere to settled rules, even when in the short term doing so ensures your opponent’s triumph and your own defeat, is the hardest of all democratic habits to acquire.”
Applebaum, Yoni. “Losing the Democratic Habit.” The Atlantic. October 2018, https://www.theatlantic.com/magazine/archive/2018/10/losing-the-democratic-habit/568336/.
Conley, Robert J. The Cherokee Nation: A History. Albuquerque: University of New Mexico Press, 2005.
McNab, J. J. “‘Sovereign’ Citizen Kane.” Southern Poverty Law Center, August 1, 2010. https://www.splcenter.org/fighting-hate/intelligence-report/2010/sovereign-citizen-kane.
“Samuel Worcester.” The Cherokee Nation, 2018. http://webtest2.cherokee.org/About-The-Nation/History/Biographies/Samuel-Worcester.
Sedgwick, John. Blood Moon: An American Epic of War and Splendor in the Cherokee Nation. New York: Simon & Schuster, 2018.
“Worcester v. Georgia.” Oyez, 24 Oct. 2018, www.oyez.org/cases/1789-1850/31us515.