Document Type

Working Paper

Publication Date



Taney, Jacksonian, McCulloch, judicial review


Working Paper


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. Peck. 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.


Constitutional Law