Academic

Graber on the Failed 1831 Repeal of Section 25 of the Judiciary Act of 1789

By Lawrence Solum

Mark Graber (University of Maryland - School of Law) has posted James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25 on SSRN. Here is the 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.

Constitutional historians must read this & the rest of us should. Highly recommended.

Full post as published by Legal Theory Blog on March 12, 2009 (boomark / email).