Judicial Activism circa 1823

Whether you agree or disagree with the complaint of S Ct Justices making law, it does seem a bit late. Consider the 1823 case of Johnson v. M'Intosh in which the Court and Justice Marshall plucked from thin air an elaborate rationale for dispossessing the native populations of North America of most rights to the land on which they lived determining that 1. The Indians were inferior to the Europeans; 2. They merely occupied certain parts of the continent where they were allowed to stay on good behavior; 3. As they had made no improvements to the land it was considered vacant and available for the taking; and 4. Such right as they may have once had they gave up in return for the gift of Christianity. Well, not necessarily thin air perhaps. Governor Harvey of Virginia had decided even before the formation of the US that “Some affirm, and it is likely to be true, that these savages have no particular propriety in any part or parcel of that country, but only a general residency there, as wild beasts in the forest; for they range and wander up and down the country without any law or government, being led only by their own lusts and sensuality. There is not meum and tuum [mine and thine] amongst them. So that if the whole land should be taken from them, there is not a man that can complain of any particular wrong done unto him.” This is what Justice Marshall had to say. “On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire… The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. … the original fundamental principle, that discovery gave exclusive title to those who made it. The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.”