The Supreme Court under Chief Justice ROGER B. TANEY (1836?1864) has not been a favorite among historians, perhaps because it defies easy generalization. There were few great constitutional moments and no dramatic law-making DECISIONS comparable to those handed down by the MARSHALL COURT. The fifteen Justices who served with Taney (not counting ABRAHAM LINCOLN'S CIVIL WAR appointees) varied immensely in ability?from JOSEPH STORY of Massachusetts who was the leading scholar on the bench until his death in 1845 to JOHN MCKINLEY of Alabama whose twenty-five years on the Court left barely a trace. Institutional unity and efficiency were often disrupted by abrasive personalities like HENRY BALDWIN (who became mentally unstable shortly after his appointment in 1830) and PETER V. DANIEL (whose passion for STATES ' RIGHTS drove him into chronic dissent). Division was constant and bitter as the Justices disagreed openly over corporation, banking, and slavery questions?all of which tended to be seen from a sectional point of view. Fortunately for the ongoing work of the Court, most of its members shared a respect for the Constitution and had a common commitment to economic progress and property rights that cut across ideological and sectional differences. All were Democrats, too, except Story, JOHN MCLEAN, and BENJAMIN R. CURTIS. Most of the Court respected the Chief Justice?whose legal mind was of a high order?and responded well to his patient, democratic style of leadership. Still the Court under Taney did not quite cohere. There was no "leading mind," as DANIEL WEBSTER complained, and no clear-cut doctrinal unity.
Clearly the Taney Court was not the Marshall Court?but then again it was not the age of Marshall. The society that conditioned the Taney Court and defined the perimeters within which it made law was democratic in its politics, pluralistic in social composition, divided in ideology, and shaped by capitalist forces which increasingly sought freedom from traditional governmental restraints. Most threatening to judicial unity, because it was directly reflected in the opinions of the Court, was the intensification of sectional rivalry. As northern states committed themselves to commerce and manufacturing, they came to see themselves?taking their cultural cues from the abolitionists?as a section united in defense of liberty and freedom. The South found ideological conservatism an ideal umbrella for an expansive social-economic system based on cotton and organized around plantation slavery. As the sections competed for political power and control of the new West, each came to think of itself as the last best hope of mankind. And each insisted that the Constitution accommodate its policy preferences?a demand that the Supreme Court could satisfy only by compromising doctrinal purity and finally could not satisfy at all.
In short, the political and economic problems of the new age became constitutional problems just as ALEXIS DE TOCQUEVILLE had said they would. Whether the Supreme Court would be the primary agency to resolve those problems was, of course, a matter of debate. ANDREW JACKSON, armed with a mandate from the people, did not believe that the Court had a monopoly of constitutional wisdom. Newly organized POLITICAL PARTIES stood ready to dispute judicial decisions that offended their constituencies. States armed with JOHN C. CALHOUN'S theory of NULLIFICATION insisted that they, not the Court, had the final word on the Constitution. Accordingly, the margin of judicial error was drastically reduced. The Court was obliged to make the Constitution of 1787 work for a new age; the high nationalism of the Marshall Court, along with its Augustan style of judging, would have to be toned down. Changes would have to come. The question?and it was as yet a new one in American constitutional law?was whether they could be made without disrupting the continuity upon which the authority of the law and the prestige of the Court rested.
The moment of testing came quickly. Facing the Court in its 1837 term were three great constitutional questions dealing with state banking, the COMMERCE CLAUSE, and corporate contracts. Each had been argued before the Marshall Court and each involved a question of FEDERALISM which pitted new historical circumstances against a precedent from the Marshall period. The Court's decisions in these cases would set the constitutional tone for the new age.
In BRISCOE V. BANK OF KENTUCKY the challenge was simple and straightforward. The issue was whether notes issued by the state-owned Commonwealth Bank were prohibited by Article I, section 10, of the Constitution, which prevented states from issuing BILLS OF CREDIT. The Marshall Court had ruled broadly against state bills of credit in CRAIG V. MISSOURI (1830), but the new Jacksonian majority ruled for the state bank. Justice McLean's opinion paid deference to legal continuity by distinguishing Briscoe from Craig, but political and economic expediency controlled the decision as Story's bitter dissent made clear. The fact was that, after the demise of the second Bank of the United States, state bank notes were the main currency of the country. To rule against the bank would put such notes in jeopardy, a risk the new Court refused to take.
Policy considerations of a states' rights nature also overwhelmed doctrinal consistency in commerce clause litigation, the Court's primary means of drawing the line between national and state power. Marshall's opinion in
GIBBONS V. OGDEN (1824) had conceded vast power over INTERSTATE COMMERCE to Congress, although the Court had not gone so far as to rule that national power automatically excluded states from passing laws touching FOREIGN and INTERSTATE COMMERCE. The new age needed a flexible interpretation of the commerce clause that would please states' rights forces in both the North and the South and at the same time encourage the growth of a national market.
In MAYOR OF NEW YORK V. MILN, the second of the trio of great cases in 1837, the Court struggled toward such a reinterpretation. A New York law required masters of all vessels arriving at the port of New York to make bond that none of their passengers should become wards of the city. The practical need for such a law seemed clear enough; the question was whether it encroached unconstitutionally on federal power over interstate commerce as laid out in the Gibbons decision. The Chief Justice assigned the opinion to Justice SMITH THOMPSON who was prepared to justify the New York law as a police regulation and as a legitimate exercise of concurrent commerce power. His narrow definition of STATEPOLICEPOWER displeased some of his brethren, however, and even more so his position on CONCURRENT POWER. When he refused to compromise, the opinion was reassigned to PHILIP P. BARBOUR, who upheld the state regulation as a valid exercise of state police power. Barbour's contention that police power was "unqualified and exclusive" far exceeded anything that precedent could justify, however, as Story pointed out in his dissent. Indeed, Barbour's opinion, so far as it ruled that states could regulate interstate passengers, went beyond the position agreed upon in CONFERENCE and lacked the full concurrence of a majority.
The Miln case settled little except that the New York regulation was constitutional. The Court remained sharply divided over the basic questions: whether congressional power over foreign and interstate commerce was exclusive of the states or concurrent with them and, if it was concurrent, how much...