IV: The Early National Period

The new government faced and adjusted to several major challenges through the first half of the nineteenth century. Almost simultaneous with the ratification of the Constitution, the French Revolution began. The twenty years of warfare generated by the revolution influenced American politics, finally drawing the United States into another war with Great Britain in 1812. At the same time, the domestic program of the Federalists sparked partisan controversy. After the often bitter political contentions of the 1790s, the US in 1800 was able to transfer power from one party to another. The new republic also provided an unprecedentedly strong and independent judiciary under Chief Justice John Marshall. Finally, the US developed the first mass democratic political system in world history, with nearly universal white male suffrage, together with a modern party organization to manage it. But slavery was the one issue that was beyond the political and constitutional capacity of the American to resolve peacefully.

When the First Congress convened in 1789, the Federalists kept their promise to propose a Bill of Rights as amendments to the Constitution. Though today most Americans regard the Bill of Rights as the shield of individual liberty, this was not the main concern of those who demanded the amendments. Antifederalists wanted a Bill of Rights was to preserve state power, not individual rights. Their chief concern was federalism. They were concerned less with the substance of rights than the procedural matter of who would define and regulate rights. James Madison proposed that the Bill of Rights apply to the states as well as to the federal government, but the Senate did away with this provision. Thus the First Amendment reads, “Congress shall make no law respecting an establishment of religion….” States were free to do so—Massachusetts maintained an established church until 1833. It was not until the 1920s, by way of the Fourteenth Amendment, that the Bill of Rights began to restrict the states. And some of its provisions, most notably the Second Amendment, have not been applied to the states. Since the federal government seldom abridged the rights enumerated in the Bill of Rights, they were of little constitutional significance until well into the twentieth century.

George Washington, elected unanimously as the first president, went a long way toward establishing the vigorous but limited executive envisioned by the Federalists. Washington took seriously the idea that the president should be above partisanship, and drew upon widespread admiration of him as the embodiment of republican virtue. He asserted presidential power over executive personnel, particularly in the removal of executive officers—a point upon which the Constitution was silent apart from impeachment. But Washington was on the whole deferential to the legislature, which showed itself jealous of its primary role in a republican constitutional system—after a long debate, the Congress decided that it would eschew monarchical titles and address the chief executive simply as “Mr. President.” He was more assertive in foreign policy, establishing the prerogative of the president to recognize foreign governments, to interpret treaty obligations, and to declare neutrality in the emerging wars of the French Revolution. He also defended the right of the president to maintain confidentiality in diplomatic negotiations—a custom later called “executive privilege.”

The principal opposition to the President arose from the plans of his Secretary of the Treasury, Alexander Hamilton. The Anglo-American tradition of keeping taxes close to the people was expressed in Congress’ requirement that the Treasury Department report to the legislature as well as to the president. Hamilton tried to use this connection as a means to act as Washington’s prime minister, to promote his plan of national economic development. Hamilton sought to develop the economy by establishing a national bank, funding the national debt and assuming state debts, a protective tariff, and infrastructure or “internal improvements.” He hoped to bind important economic interests to the new government and to strengthen national identity. His opponents, especially southern and states-rights men, objected that these policies—particularly a congressionally-chartered national bank—were beyond the powers granted by the Constitution. They feared that Hamilton sought to “influence” or corrupt the legislature in order to build up an urban-commercial elite, a parasitical “paper aristocracy,” at the expense of the independent yeomen farmers who alone possessed the virtue necessary for republican government. James Madison, Hamilton’s erstwhile nationalist ally, led the opposition in the House of Representatives, and Thomas Jefferson, Secretary of State, joined him. Their followers came to be known as “Republicans.” Hamilton was partially successful, but these issues of national mercantilism would continue to cause political and constitutional controversy for decades. Along with the partisan positions on the French Revolution—the Federalists favoring England and the Republicans France—Hamilton’s policies led Republicans to denounce the Federalists as monarchists, and the Federalists to accuse the Republicans of being Jacobins.

The crisis of the Federalist administration came during the term of John Adams, who had the confidence of neither the Jeffersonian opposition nor of Hamilton and his “high Federalist” allies. Adams did his best to keep the United States out of war with an increasingly hostile France, but the preparations that the Federalists made for war provoked a hostile public reaction. The most famous and constitutionally significant of these were the Alien and Sedition Acts, aimed at controlling the anti-administration views of pro-French elements in America and, more broadly, of the Jeffersonian Republicans. The Constitution gave Congress no power to punish seditious libel— speech or writing that brought the government into contempt or ridicule—the Jeffersonians argued; the Federalists claimed that there existed a common law of seditious libel, which the federal government could prosecute even without a statute. This was an alarming idea, for it suggested that Congress was not limited to the powers enumerated in Article I, section 8 of the Constitution, but might legislate on any matter of the common law. The Republicans also noted that the Sedition Act violated the First Amendment’s free speech and press provisions. But the Federalists interpreted “freedom of the press” to mean “no prior restraint”—that is, publications could not be censored, but slander and libel were punishable after publication. Moreover, the Federalists claimed that the act mitigated the common law of seditious libel, by making truth a defense against the charge, and allowing juries to determine guilt. President Adams had not sought but did sign the act, which was often vigorously enforced by Federalist prosecutors and judges.

Madison and Jefferson worked with the legislatures of Virginia and Kentucky to write protests against the acts, known as the Virginia and Kentucky Resolutions. Generally denouncing the Alien and Sedition Acts, the fundamental principle of the resolutions was that the Constitution was a compact among the states, not the work of the people of the United States. The states, not the federal government, were the ultimate arbiters when disputes arose about the extent of federal power. They declared that the states had the power to “interpose” against or “nullify” unconstitutional congressional acts, but did not specify how such action might be implemented. The first Kentucky Resolution noted that further abuses would “drive these states into revolution and blood,” and Jefferson privately sought an explicit threat to “sever ourselves from [the] union,” though Madison dissuaded him. However unpopular the Alien and Sedition Acts were, no other state legislature endorsed the Virginia and Kentucky Resolutions, and several condemned them.

Combined with new taxes to support a new army, the Sedition Act provided a platform for the Republicans in the election of 1800. They won large majorities in Congress, but the presidential election was very close. State legislatures still chose most electors and, while Jefferson probably would have won a popular-vote contest, the Republicans benefited from the extra electoral votes that the three-fifths clause gave to slave states, where the party was strongest. Moreover, the Republican electors gave an equal number of votes to Jefferson and Aaron Burr, which threw the election into the lame-duck Federalist House of Representatives. Regarding Jefferson as less radical than Burr, the House chose him. In 1804 the Twelfth Amendment provided that electors should cast separate ballots for President and Vice-President, making electoral college ties less likely.

Although intense partisan feelings led people to speak of the “revolution of 1800,” the transfer of power was not revolutionary at all. The Republicans brought to the capital a different constitutional emphasis—states-centered federalism, the state-compact theory of the union, legislative supremacy, strict construction of the Constitution—but did not change the nature of the government. Jefferson himself took pains to conciliate moderate Federalists—as he said in his inaugural address, “We are all Republicans; we are all Federalists.” Jefferson was a moderate Republican who wanted to put an end to partisan strife. Above all, circumstances and events led the Republicans to adopt many of the nationalist tactics of the Federalists.

While Jefferson managed Congress effectively in an informal manner as party leader, his public stance was deferential. He no longer appeared in person before Congress, and did not veto a single act of Congress. He removed few Federalist officeholders and, while the government retrenched taxing and spending, it did not dismantle the Federalist program altogether. Perhaps most important, Jefferson thwarted radical Republican attempts to remove Federalist judges and left the Federalist-dominated judiciary largely intact. The Republicans enjoyed continued electoral success, and the Federalist party never made a comeback.

Jefferson was fortunate to have taken office during a lull in the wars of the French Revolution, but Napoleon Bonaparte soon renewed conflict, and this posed great challenges to the Republicans. The first of these was Napoleon’s offer to sell the vast Louisiana Territory to the United States. Such an acquisition presented the opportunity to double the size of the county, to control the Mississippi River—of vital importance to western farmers—and to provide the space in which to build an agrarian-Jeffersonian “empire of liberty.” But the Constitution contained no provision for territorial purchase, and the impetuous French dictator might not wait for a constitutional amendment. Jefferson thus overcame his strict-constructionist scruples and agreed to a treaty in 1803.

With Great Britain and France at war again, the United States faced the problem of having the belligerents respect its trading rights as a neutral power. The Republicans attempted a number of economic sanctions to get them to do so. Toward the end of Jefferson’s second term, Congress enacted an embargo, forbidding Americans to export goods abroad. The Constitution gave Congress no power to embargo—indeed, the Federalists complained, a Constitution that forbade the taxation of exports could hardly allow for their prohibition. The policy was especially unpopular in New England, whose economy depended on foreign trade, and where it was regarded as a piece of spiteful sectional and partisan oppression. Jefferson regarded the New England merchants as devoid of republican virtue, more interested in profit than national honor, and resorted to treason prosecutions to enforce the act. Congress repealed it as Jefferson left office. His successor, James Madison, fared no better in getting the French and British to change their behavior, and in 1812 reluctantly asked Congress to declare war on Great Britain.

The war exposed many of the weaknesses of Republican policy, which had left the nation unprepared for war: largely bereft of an army and navy, unable to move the forces that it had, and with little money or credit (the Federalist Bank of the United Sates having expired in 1811). The nation was divided about the war, and opposition was intense in New England. State governments resisted the war and sent delegates to a convention at Hartford, Connecticut in 1814 to consider their grievances. Although there was informal talk of secession, the convention produced only a proposal for constitutional amendments that would limit the power of the South and West that northeasterners believed had led to a sectional war. While the proposals were arguably less disunionist than the Virginia and Kentucky Resolutions, they were seen as unpatriotic and led to the final destruction of the Federalist party.

Though the war went badly for the United States, Britain, exhausted by the European war, gave generous terms in the Treaty of Ghent to end hostilities. President Madison and the Republicans, realizing the dangerous effects of weak central government and full of postwar national enthusiasm, returned to Federalist policies that they had earlier denounced. Madison overcame his objections and agreed to a second Bank of the United States in 1816. Congress adopted the first protective tariff that year, to reduce America’s industrial dependency. But Madison drew the line at federally-sponsored internal improvements. And the ambitious and unbridled nationalism of John Quincy Adams, elected in 1824, caused a major political realignment and reassertion of states-rights principles, as the second Massachusetts president suffered the fate of his father.

The Supreme Court made important contributions to this postwar nationalism, and came into its own as a significant branch of the national government. The Constitution had provided for a separate, independent, and potentially quite powerful judiciary. Judges, appointed by the president and confirmed by the Senate, were to enjoy life tenure during good behavior, and could not have their salaries reduced while in office. The Constitution also gave the federal judiciary a vast grant of jurisdiction: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and Treaties….” Indeed, some Antifederalists feared that the federal judiciary would help destroy state power. But this was not a serious objection to the Constitution. More common was the Anglo-American sense that courts were defenders of individual liberty against arbitrary government, as the common law courts had resisted Tudor-Stuart absolutism. Thus Alexander Hamilton was able to dismiss fear of judicial oppression in the Federalist, calling the judiciary “the least dangerous branch,” one that could never harm the liberties of the people—so long as it respected the distinction between law and politics.

In addition, the Constitution gave the judiciary a vast potential power; in fact its composition and jurisdiction were almost entirely under Congress’ control. The Constitution required only a Supreme Court, and limited its original jurisdiction to a few matters of little importance. The remainder of the federal judicial system would consist of “such inferior courts as the Congress may from time to time establish.” Congress also controlled the appellate jurisdiction of the Supreme Court. Thus, when the First Congress considered a judiciary act it was effectively writing a whole new Article III.

The Judiciary Act of 1789 went a long way toward establishing s strong national judiciary, but also made significant concessions to state power. It established a three-tier structure: a district court in each state, a Supreme Court of six justices, and an intermediate circuit court composed of district judges and Supreme Court justices together. Its most important provision was section 25, which allowed appeals of constitutional questions from the highest state court to federal courts. Without this provision, state judges could be the ultimate arbiters of federal questions, and there might be as many constitutional interpretations as there were states. On the other hand, the act shared jurisdiction between federal and state courts, particularly in small suits.

In its first decade the Supreme Court was not a very busy or prestigious institution. It carefully avoided involvement in political controversies, limiting itself to legal “cases and controversies” only. It declined, for example, to give advice to President Washington on international law, and to serve as arbiters for the claims of Revolutionary War veterans. It did hear challenges to acts of Congress (always upholding them), and enforced treaty obligations against state laws that confiscated British and Tory property or repudiated debts. But when a creditor won a suit against the state of Georgia in 1793, state interests proposed a constitutional amendment that prevented states from being sued in federal courts. But in time the federal courts found ways around the Eleventh, “sovereign immunity” amendment, ratified in 1795.

The federal judiciary became a political football after the election of 1800. Having lost control of the executive and legislative branches, the lame-duck Federalist Congress enacted a new judiciary act in March, 1801. The act remedied some legitimate defects in the system, such as relieving the Supreme Court justices of the arduous duty of “riding circuit.” It did this by creating sixteen new circuit-court judgeships, all of which were given to Federalists—the courts being “packed,” Republicans complained, with “midnight judges.” The act also reduced the size of the Supreme Court from six to five—ostensibly because of the reduced work load, but apparently to deprive President-elect Jefferson of his first appointment. Finally, it expanded the jurisdiction of the federal judiciary, ending the power-sharing arrangement with the state courts.

Republicans did not attempt to repeal the act until the end of the year. Federalists claimed that the repeal was unconstitutional, since the new judges had been appointed for life terms. But the Supreme Court, most notably new Chief Justice John Marshall, upheld the repeal. The judicial system essentially reverted to its 1789 form.

Chief Justice Marshall also deftly handled another politically sensitive case, in the first instance of the Supreme Court overturning an act of Congress. The lame-duck Federalist Congress had also enacted a law for the government of the District of Columbia, creating several justice of the peace offices. President Adams appointed William Marbury to the office and signed his commission, which was sealed by then-Secretary of State John Marshall. Marshall left it on his desk; the new administration never delivered it. Marbury then brought suit in the Supreme Court, as provided by section 13 of the Judiciary Act of 1789, for a writ of mandamus—a court order to an executive officer to do his duty—ordering the new Secretary of State, James Madison, to deliver the commission.

Marshall’s opinion made a strong statement of the Court’s power to interpret, as well as the power to order the executive to enforce, acts of Congress. Marbury was entitled to his commission, and it was the duty of the executive to deliver it. However, in a deft maneuver, Marshall concluded that the Court had no power to issue the mandamus, because Congress had no power to give the Court original jurisdiction to issue it. Article III of the Constitution strictly defined the Court’s original jurisdiction, and did not include such power. That is to say, section 13 of the Judiciary Act was unconstitutional.

These details of the case are important because Marbury v. Madison is a frequently misunderstood case. In the twentieth century it has been interpreted as the foundation of judicial review, given Marshall’s refusal to follow an act of Congress contrary to the Constitution. “It is emphatically the province and duty of the judicial department to say what the law is,” the Chief Justice said. But Marshall made no claim to supreme or exclusive judicial power over constitutional questions. It was widely understood that the Supreme Court would necessarily have to review acts of Congress, but it was expected that, as in Marbury, they would be cases of a peculiarly judicial nature, involving judicial procedure and jurisdiction especially. In this case, Marshall was declining to exercise a power given to the Court; in other state cases, courts reacted to legislative encroachments on the judicial power. More controversial was Marshall’s threat to compel executive officers to enforce the law—the step that his adroit opinion avoided. The Supreme Court did not strike down another act of Congress until the Dred Scott case in 1857, which had disastrous consequences. Nor were any significant acts of Congress overturned until the end of the nineteenth century. Recent scholarship has cast doubt on the view that the pedigree of modern judicial activism is not traceable to John Marshall.

Marshall’s moderation in Marbury was answered by Jefferson’s frustration of radical Republican attempts to impeach Federalist judges. Led by John Randolph of Virginia, the Republicans believed that impeachment was a legitimate political weapon to keep the judiciary responsible to the sovereign people. Moderates countered that it could only be employed in cases of criminal conduct—that the Constitution’s standard of “treason, bribery, or other high crimes and misdemeanors” was equivalent to indictable offenses. The radicals were able to impeach and remove district judge John Pickering, but only because he was obviously habitually drunk and insane. Supreme Court Justice Samuel Chase, on the other hand, was accused of political intemperance and partisan bias. Due to a political falling out between Jefferson and Randolph, the President used his influence to win acquittal for Chase, which put an end to the impeachment campaign.

The outcome of these judicial skirmishes was political domination of the moderate Republicans and independence and stability for the federal judiciary. Jefferson made three appointments to the Supreme Court and James Madison two, all of whom were won over to John Marshall’s side. From 1811 to 1823 there were no new appointments to the Court, allowing Marshall to consolidate his control of the institution, and to move ahead to augment political nationalism in the postwar years.

The Marshall Court’s most important legacy was upholding the supremacy clause of the Constitution: that “This Constitution, and the laws of the United States… shall be the supreme law of the land… any thing in the constitution or laws of any state to the contrary notwithstanding.” Even before 1801, the Court had forced states to abide by federal treaty obligations, and in 1809 the Marshall Court vindicated federal maritime jurisdiction over state interference. The next year, Marshall began to make vigorous use of the contracts clause—Article I, section 10’s command that “No state shall… pass any law… impairing the obligation of contracts.” The Georgia legislature, almost completely bribed, had sold a vast amount of state land to real estate speculators in the notorious “Yazoo land fraud” of the 1790s. A subsequent legislature revoked the sale. When third-party purchasers sued to regain it, the Supreme Court sided with them in the 1810 case of Fletcher v. Peck. Marshall ruled that, albeit tainted by fraud, the sale was a valid contract that a state could not abridge. The decision was characteristic of Marshall Court decisions in its concern for private property rights and the effect it had of encouraging entrepreneurship. The Court later applied the contract clause to state grants of tax-exemption, interstate compacts and, most important, corporation charters. The Court helped to development of the idea of a private corporation, since corporations had traditionally been regarded as public bodies. In one of the Marshall Court’s most famous decisions, it prevented the state of New Hampshire from taking over Dartmouth College, interpreting the college’s 1769 royal charter as a contract. The Court was also largely able to prevent states from reviving the kind of debtor-relief laws that plagued the Confederacy in the 1780s.

The Marshall Court’s most important decision was probably McCulloch v. Maryland (1819), sustaining the Second Bank of the United States against Maryland’s attempt to tax it out of existence. Marshall emphasized that the American Constitution was the act of the sovereign people, rather than a compact among sovereign states. He admitted that the people had empowered government at two levels, and that the national government was one of limited, enumerated powers. But within its sphere of delegated powers, it was supreme. While the power to charter a bank was not among the enumerated powers, Marshall claimed that the Constitution, especially the necessary-and-proper clause, allowed for implied powers. A Constitution could not provide a specific provision for every possible contingency of the future, he said. It could only mark the general purposes of government, and must be read broadly.

Marshall also began to give strength to the Constitution’s grant of power to Congress to “regulate commerce… among the several states.” In 1824 he struck down a New York monopoly grant on Hudson River steamboat traffic, as conflicting with a federal coasting act. He argued for a broad definition of “commerce.” “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse,” he said. Similarly, the Court struck down a Maryland law that discriminated against out-of-state importers. Here, too, the Court promoted a national free market.

Marshall had established important precedents in a broad range of cases. The Court almost always spoke unanimously, and usually through the Chief Justice, who dissented in only one important case. As Marshall recognized that postwar patriotism would sustain his defense of federal power, so he restrained himself when the Jacksonian states-rights reaction set in. In 1829 the Court recognized a “dormant commerce power”—that states could affect interstate commerce in the absence of federal legislation. It also ruled that corporate charters did not give their holders extraordinary privileges such as tax exemption. Finally, the Court reaffirmed the fact that the Bill of Rights did not limit state power.

Andrew Jackson’s 1828 election ushered in a new period in American political history. It marked the movement away from constitutional nationalism and toward a states-rights federalism, weakening the power of the central government, and culminating in secession and civil war. It also brought forth the rise of modern political parties. Nearly all of the restrictions on white male suffrage were gone by the 1820s, and the principle of unfettered majority rule was ascendant.

Whereas the founding generation denounced political parties as “factions” and threats to republican government, the antebellum generation came to accept and embrace them as safeguards to constitutional government. They were useful institutions in organizing and communicating with the mass of new voters. They also helped to make American politics less extreme and ideological, drawing people’s attention away from divisive issues like slavery, and preventing or controlling the personal ambitions of politicians. Martin Van Buren in particular espoused the value of permanent, intersectional party organization, in the aftermath of the 1820 crisis over slavery in Missouri, and the heated, disorganized presidential election of 1824. Voter participation was never higher than in the period from the 1840s to the 1880s. But there was a price to be paid for the party system. They were not able to deal with morally charged issues like slavery, and tended to make partisan power an end in itself. People worked for their parties for the socioeconomic benefits that political power conferred—most obviously in government employment and “patronage.”

The Jacksonian Democratic party was in large measure the successor to the Jeffersonian Republican party. It was predominantly southern and western, and composed largely of peripheral ethnic and religious groups (other than blacks), including the large numbers of new immigrants who came to America after the end of the wars of the French Revolution. The party believed in the separation of church and state, and generally frowned on government interference in cultural and moral matters. It believed that the states rather than the national government ought to guide economic development, though radical Jacksonians were laissez-faire libertarians. The Democrats differed from the old Republicans in their acceptance of an active executive role. Andrew Jackson was a vigorous president, who believed that, as the only officer elected by the entire people, he embodied the popular will.

These party positions, particularly the energetic executive, gave rise to an opposition party, the Whigs. The Whigs followed the Federalists as constitutional nationalists. The party was strongest in the northeast and was composed of the “core” ethno-cultural groups—primarily British Protestants, but also blacks where they could vote. The Whigs embraced a strong central government, and advocated the Hamiltonian policy of national mercantilism. They tended to be more censorious than the Democrats, and were willing to use government power to impose cultural and moral norms. They reacted strongly to Jackson’s use of executive power, taking the name “Whig” as opponents of the man they called “King Andrew the First.”

The Democrats generally devolved government functions to the states. The federal budget surplus was simply distributed to the states, despite the doubtful power of Congress to do this under the Constitution. Jackson similarly allowed the states to take over Indian policy, allowing Georgia to oust the Cherokees. In this conflict, the Supreme Court denied that Indians were citizens who could sue in federal courts, defining them as “domestic dependent nations.” In a subsequent case the Court held that Georgia could not exercise political power in Cherokee lands (Georgia had prosecuted white missionaries for preaching in Indian territory without the state’s permission), but Georgia ignored the Court. The issue was resolved politically before a final confrontation between the President and the Chief Justice.

The most significant assault on national power came in Jackson’s “war” against the Second Bank of the United States. The nascent Whigs moved to renew the charter of the bank in 1832, hoping to make an election issue of it. In a blistering veto, composed by his attorney general and future Chief Justice, Roger B. Taney, Jackson vetoed the bill. Denying that the Supreme Court’s decision in the McCulloch case settled the issue of the constitutionality of the bank, Jackson asserted the equal right of each branch of the federal government to interpret the Constitution. He also defended the participation of the president in legislation and policy-making. The message also contained a forceful presentation of Democratic socioeconomic views. His dander up, Jackson next proposed to punish the Bank by removing the funds of the United States from the Bank, despite the fact that the government may have been legally obliged to maintain them. He had to fire two Secretaries of the Treasury who refused to withdraw the money, finally installing Taney, who carried out his orders. This led the Senate to “censure” the President, which Jackson regarded as being an unconstitutional act. (When Democrats regained control of the Senate, the resolution of censure was “expunged” from the record.) But Jackson was easily re-elected in 1832.

But Jackson’s nationalist spirit was kindled by South Carolina attempt to “nullify” the protective tariff. John C. Calhoun, who had been a strongly nationalist Secretary of War and Jackson’s first-term Vice-President, led the effort to force the government to reduce the tariff. Based on state-sovereignty and state-compact theories of the Union, Calhoun argued that the states had the power to suspend the operation of federal laws that were beyond the power of Congress to enact. If the other members of the Union chose, they could amend the Constitution to give Congress such power, but the nullifying state had the final option to secede from the Union. When a special popular convention voted to nullify the tariff in 1832, Jackson responded forcefully. He defended the popular sovereignty view of the Union, declaring that the Constitution formed a genuine government, not a league of sovereign states. He warned the South Carolinians that “Disunion by armed force is treason,” and asked Congress for a “Force Act” to enable him to suppress rebellion. But so ardent was Jackson’s response that moderates began to be as concerned about the danger of executive power as they were about the nullification threat. Jackson ended up having to accept a compromise brokered by his political opponent, Henry Clay, in which the tariff would be reduced over the course of a decade. South Carolina simply repealed its ordinance of secession, but did not repudiate the doctrine itself.

In his second term, Jacksonians took control of the Supreme Court. Chief Justice John Marshall died in 1835, and Jackson appointed Roger B. Taney to succeed him. Taney had been rejected by the Senate when appointed to an associate justice seat the previous year, but was now confirmed. Jackson and his successor, Martin Van Buren, appointed every member of the Supreme Court except for Joseph Story, the lone survivor of the Marshall Court. While nervous nationalists anticipated a judicial revolution, the Taney Court most often continued Marshall Court precedents. There was sometimes a subtle shift toward the states in federalism questions, and the Taney Court was marked by plurality rather than unanimity in its opinions. But the Court was finally polarized and wracked by the slavery issue, and Taney’s decision in the Dred Scott case has indelibly tarnished his otherwise distinguished career.

In its first term, 1837, the Taney Court signaled a change of emphasis. It overturned a Marshall Court decision that prevented states from issuing paper money, by allowing state-chartered banks to do so. In the term’s most important decision, the Charles River Bridge case, the Court held that corporation charters did not give their holders implied monopoly privileges. In this case, it allowed Massachusetts to charter a new bridge across the Charles River, despite the fact that it would reduce the value of the first bridge company’s charter. “While the rights of private property are sacredly guarded,” Taney wrote, “we must not forget that the community also have rights, and that the happiness and well being of every citizen depends on their faithful preservation.” Although Whigs feared that the decision was the opening of a democratic assault on property rights, an invitation for popular majorities to dispossess minorities, it was not that at all. The decision gave impetus to new, innovative entrepreneurship, in keeping with the “creative destruction” typical of capitalist economies.

The Taney Court showed its sympathy to economic enterprise in other areas. It prevented states from enacting debtor-relief legislation that impaired contracts, and prevented municipalities from repudiating bond issues. It also gave corporations some of the rights of “citizens” under the Constitution—especially access to federal courts, which were generally more pro-business than state courts. The Court also tried to revive the idea of a federal common law in commercial matters, but did not succeed in fashioning a uniform national commercial code. Rival federal and state business law remained a problem. These cases were indicative of the Taney Court in that it was generally in favor of states rights, but also exercised federal judicial power. It was something of a paradox that the Taney Court helped to centralize the American market economy at the same time that political and constitutional power was decentralizing. The antebellum political and constitutional system ultimately ran aground on the shoals of slavery.

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