Abstract

http://ssrn.com/abstract=1356075
 
 

Footnotes (243)



 


 



James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25


Mark Graber


University of Maryland - Francis King Carey School of Law

March 7, 2009

U of Maryland Legal Studies Research Paper No. 2009-14

Abstract:     
James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25, for the maintenance of judicial power in the United States during the transition from National Republican rule to Jacksonian Democracy that took place during the 1820s and 1830s, and for the maintenance of judicial power in the United States during other political transitions. The Jacksonian experience more generally highlights how political diffusion helps preserve judicial power both during periods of political stability when no existing coalition fully controls the national government and during periods of political reconstruction or realignment when a new coalition gains control of the national government. Judicial power, the evidence from 1831 and other times suggests, thrives in a political environment more characterized by intercurrence than realignment. In political environments characterized by intercurrence, the political institutions that must unite for a successful challenge to federal courts are rarely on the same page. Challenges to judicial authority occur more frequently because, in a world of relatively autonomous elected branches of government, at least one is likely to be seriously at odds with decision making trends on the Supreme Court. These more frequent challenges are also more likely to fail because other elected branches of government are more likely to be moving more in step with the judicial majority than the challenging branch of the national government. Just ask the southern Jacksonians who discovered that the political transformations that gave them the power to elect one of their own Speaker of the House were not sufficient in 1831 to align the rest of the Congress against the Supreme Court.

Number of Pages in PDF File: 84

Keywords: James Buchanan, judicial review, Judiciary Act of 1789, judicial authority

working papers series





Download This Paper

Date posted: March 11, 2009  

Suggested Citation

Graber, Mark, James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25 (March 7, 2009). U of Maryland Legal Studies Research Paper No. 2009-14. Available at SSRN: http://ssrn.com/abstract=1356075 or http://dx.doi.org/10.2139/ssrn.1356075

Contact Information

Mark Graber (Contact Author)
University of Maryland - Francis King Carey School of Law ( email )
500 West Baltimore Street
Baltimore, MD 21201-1786
United States
Feedback to SSRN


Paper statistics
Abstract Views: 603
Downloads: 102
Download Rank: 157,235
Footnotes:  243

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.297 seconds