The Jacksonian Makings of the Taney Court

84 Pages Posted: 7 Nov 2005

See all articles by Mark Graber

Mark Graber

University of Maryland - Francis King Carey School of Law

Date Written: 2005

Abstract

Many twentieth century commentators regard the willingness of Taney Court majorities to declare laws unconstitutional as proof that the justices on that tribunal adjured Jacksonian partisanship upon taking the bench. Old Republicans during the 1820s fulminated against judicial review of state legislation and sought to repeal Section 25 of the Judiciary Act of 1787, but they were apparently frustrated by a Taney Court which continued imposing contract clause and dormant commerce clause limits on state power. This paper demonstrates that Jacksonians in office supported judicial power. Jacksonian animus was more directed at McCulloch v. Maryland than either Marbury v. Madison or Fletcher v. Pack. Jacksonians wanted a stronger federal judiciary that would limit national power to regulate economic life and prevent northern states from assisting fugitive slaves. The more interesting question about the Taney Court is why they never overruled McCulloch, given that the judicial majority was on record as opposing that decision, then why then never limited Marbury.

Keywords: Taney, Jacksonian, McCulloch, judicial review

Suggested Citation

Graber, Mark, The Jacksonian Makings of the Taney Court (2005). U of Maryland Legal Studies Research Paper No. 2005-63, Available at SSRN: https://ssrn.com/abstract=842184 or http://dx.doi.org/10.2139/ssrn.842184

Mark Graber (Contact Author)

University of Maryland - Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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