The Jacksonian Origins of Chase Court Activism

Abstract

The Jacksonian Origins of Chase Court Activism MARK A. GRABER Brady: Why is it, my old friend, that you have moved so far away from me? Drummond: All motion is relative. Perhaps it is you who have moved away—by standing still.1 Judicial review was seemingly born again during the Reconstruction. In Marbury v. Madison2 the Marshall Court asserted the power to declare federal laws unconstitutional, but in thirty-five years that tribunal explicitly struck down only one federal statute and that statute was of hardly any consequence. In its almost thirty years, the Taney Court also explicitly declared unconstitutional only one federal statute,3 and that statute had been repealed seven years before the Court declared it void. By comparison, during its mere ten-year reign the Chase Court is generally thought to have declared unconstitutional at least eight and possibly as many as ten existing federal laws.4 That tribunal also asserted a significant constitutional limit on congres­ sional power in a case declaring an executive action unconstitutional,5 affirmed another federal law by an equally divided vote when a Justice almost certainly opposed to the measure was un­ able to attend the judicial session,6 and issued the first judicial ruling declaring that a federal court trial violated the Bill ofRights.7 Several Chase Court decisions condemned important and highly controversial national policies. The Justices in Ex parte Milligan ruled that neither the national executive nor the national legislature was constitutionally authorized during the Civil War to declare martial law in northern states where civilian courts were open. Six years later, in Hepburn v. Griswold, a Chase Court majority declared unconstitutional Treasury Secretary Chase’s use of greenbacks to help finance the Civil War. Had Congress at the last moment not passed a law stripping the Supreme Court ofhabeas corpusjurisdiction, the Justices almost cer­ tainly would have declared unconstitutional portions ofthe 1867 Military Reconstruction Act.8 18 JOURNAL OF SUPREME COURT HISTORY Future Courts continued along the path apparently blazed by Chase and his brethren by routinely striking down federal laws. No longer would the Supreme Court sit for more than fifty years without explicitly declaring a federal measure unconstitutional. The longest such drought after the Civil War lasted seven years, from 1936 to 1943.9 The longest drought in peacetime lasted five years, and that gap occurred during a transition period between Chief Justices.10 With the exception of Harlan Fiske Stone and Carl Vinson, every post-Civil War Chief Justice presided over a tribunal that declared at least eight federal laws unconstitutional and struck down an av­ erage of at least one federal statute every two years. Many decisions had little impact, but at least one major federal policy has bitten the dust in every decade after the Civil War. This paper challenges the conventional understanding of the Chase Court as the tribu­ nal that laid the foundations for modern judi­ cial power. The dramatic increase after the Civil War in judicial decisions explicitly de­ claring federal laws unconstitutional masks far greater continuity with antebellum judicial practice than is generally recognized. Chase Court activism in major cases was grounded in inherited Jacksonian understandings of fed­ eral power articulated during the three de­ cades before the Civil War in Democratic party platforms and in the messages of Demo­ cratic presidents vetoing constitutionally con­ troversial exercises of federal power. The Chase Court Justices most likely to declare federal laws unconstitutional were the Jackso­ nian holdovers from the Taney Court and Jus­ tice Stephen Field, the only Lincoln appointee who was a lifelong Democrat. Chase Court decisions declaring politi­ cally inconsequential laws unconstitutional arose from changes in judicial workload and style of opinion-writing in constitutional cases, not changes in judicial understandings The author challenges the conventional notion that the Chase Court laid down the foundations of modern judi­ cial power by dramatically increasing the number of judicial decisions it issued explicitly declaring federal laws unconstitutional. Instead, he argues, Chase Court activism was a continuation of Jacksonian principles of federal power and the Justices most likely to overturn federal laws were Jacksonian appointees from the Taney Court. CHASE COURT ACTIVISM 19 of either the powers of the...