Re: Marshall & Upholding Federal Stutes

[Mark Graber]

By "conincidence" I happen to know of two articles addressing the "failure" of the court to declare laws unconstitutional between Marbury and Dred Scott.  The first, Mark A. Graber, "Naked Land Transfers and American Constitutional Development," 53 Vanderbilt 73 (2000) provides what my grandmothers belies to be "a definitive demonstration that the Taney Court did indeed declare laws unconstitutional (in very obscure cases) between 1803 and 1857.  The second, Mark A. Graber, "The Jacksonian Origins of Chase Court Activism," 25 Journal of Supreme Court History 17 (2000) asserts that a reason why the Taney Court did not declare major federal laws unconstitutional was that in Jacksonian America the vast majority of constitutionally controversial proposals either failed to pass Congress or were vetoed by the president (think of the national bank and lots of internal improvement bills)--there is even a long footnote in another piece demonstrating the probable 6-3 majority on the court that would have overruled McCulloch had Tyler signed the bank bill in 1841 or 1842.  These pieces, acclaimed from coast to coast (my aunt lives in LA and my mom in LI), are available on request.   Mark A. Graber (who is in a really weird mood this morning). [EMAIL PROTECTED] >>> [EMAIL PROTECTED] 08/13/03 06:51AM >>>        Two virtually independent issues: (1) There is a familiar line designed, I think, to minimize (perhaps that's too strong) Marbury's importance which states that the Supreme Court did not strike down another federal law for over fifty years. I assume this also is designed to show (suggest) that judicial review/supremacy during those years was not a terribly significant power, especially compared with judicial review/supremcy's role in the 20th century. Is there any literature addressing this particular issue: Despite the lapse in the use of judicial review to strike down federal statutes, the history of the Marshall Court demonstrates the tremendous (additional?) power Marshall grabbed for the Court in upholding federal statutes in such cases as McCulloch, Gibbons, and others? Thus, the lapse in striking down federal statutes is not even remotely dispositive in the debate over the power (legitimate or stolen)  Marshall garnered for the Court during his tenure as Chief Justice because in upholding federal statutes Marshall nevertheless arguably transformed American constitutionalism and government.  If so, upholding federal laws as much as striking them down should be considered in evaluating the power the Court acquired during this period.        (2) Is there an obvious answer (which I'm unfortunately overlooking) why didn't Marshall address Art. I, Section 9, cl. 6:  "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another." in Gibbons?  Thanks. Bobby Lipkin Widener University School of Law Delaware