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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

C, Cohens v. Virginia,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 25 May 2020

Cohens v. Virginia,

6 Wheat. (19 U.S.) 264 (1821), argued 13 Feb. 1821, decided 3 Mar. 1821 by vote of 6 to 0; Marshall for the Court. Philip and Mendes Cohen sold lottery tickets in Virginia under the authority of an act of Congress for the District of Columbia. The Cohens appealed their conviction for violating the state statute, which had banned such lotteries. Virginia asserted that the *Eleventh Amendment precluded the Supreme Court from hearing the case and that section 25 of the *Judiciary Act of 1789 did not apply.

The Cohens case reflected the effort by several states, including Virginia, to challenge John *Marshall’s opinion in *McCulloch v. Maryland (1819). Marshall seized on Cohens, which some historians believed was contrived, to reemphasize federal judicial power. He asserted that the Constitution made the Union supreme and that the federal judiciary was the ultimate constitutional arbiter. While the states could interpret their own laws, any federal question must ultimately be resolved, as section 25 provided, only by the federal courts. The Eleventh Amendment did not prevent federal courts from deciding properly a legitimate federal question, even where a state was the appellee.

Marshall avoided Virginia noncompliance by holding that the lottery statute applied only in the District of Columbia, but Virginia states’ rights advocates nonetheless blasted his judicial nationalism.

See also judicial power and jurisdiction.

Kermit L. Hall