Senator Stephen Douglas had come into the political spotlight through his work in the Compromise of 1850 and the Kansas-Nebraska Act, which had temporarily held the country together but perpetuated the institution of slavery. Douglas, a Democrat, was a force to be reckoned with for keeping a seat in the United States Senate despite the growing strength of the Republican Party throughout the North and in his home state of Illinois. Throughout 1858, a time when the state legislatures elected senators to the United States Senate, Douglas would have to win the support of the people of Illinois, and the Illinois legislature, by debating the issue of slavery, and the future of the country, with the Republican candidate for the Senate, Abraham Lincoln. See David Potter, The Impending Crisis: America Before the Civil War, 1848-1861, 330-31. Read more
Following the violence in Kansas known as Bleeding Kansas, there was a question of whether the territory would be admitted as a free state or slave state. After taking office in 1857, President James Buchanan appointed Robert J. Walker of Pennsylvania to be governor of Kansas. Governor Walker wrote a letter to President Buchanan, stating “that the actual bona fide residents of the territory of Kansas, by a fair and regular vote, unaffected by fraud or violence, must be permitted, in adopting their State Constitution, to decide for themselves what shall be their social institutions.” Walker to Buchanan, March 26, 1857, in Kansas State Historical Society Transactions, V (1891-1896), 290 (italics in original). Even with such a pronouncement regarding the nature of an election, no one knew how Kansans would vote on the issue of slavery or how soon Kansas would become a state. Read more
In 1857, the United States Supreme Court decided one of the most controversial cases in the history of the country. Just days after James Buchanan began his term as president, Chief Justice Roger Taney wrote the opinion for the Court, ruling that neither slaves nor freedmen could be citizens of the United States. The implications of this decision, and its reasoning, have been analyzed, dissected, and discussed since 1857. While many have concluded it is one of the Supreme Court’s worst decisions, its impact on Antebellum America should not be overlooked.
In the 15 years leading up to the Civil War, a wide variety of theories emerged for how the federal government should deal with slavery expanding, or not expanding, into the territories acquired by the United States.
John Marshall, perhaps the greatest Chief Justice of the Supreme Court of the United States, died on July 6, 1835. As his life was coming to a close, he wrote Joseph Story, “I yield slowly and reluctantly to the conviction that our constitution cannot last.” Daniel Walker Howe, What Hath God Wrought: Transformation of America, 1815-1848, 439 quoting John Marshall to Joseph Story, Sept. 22, 1832, quoted in Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge, 2001), 386.
The Constitution, in combination with the Judiciary Act of 1789, created the three-tiered court system that is familiar to modern Americans. However, one of the defining features of the judiciary is the concept of judicial review. Judicial review is the doctrine that permits a court, such as the Supreme Court in Marbury v. Madison, to declare an act of Congress unconstitutional. See Gordon Wood, Empire of Liberty, 442. In 1803, Chief Justice John Marshall was the first to exercise this power of the Supreme Court, setting the precedent for future courts, particularly in the 20th Century, to declare acts of Congress unconstitutional. Id.
Thomas Jefferson declared the following year, in 1804, that granting the courts the power of judicial review “would make the judiciary a despotic branch.” Malone, Jefferson the President: First Term, 155. James Madison explained that judicial review “makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper.” Madison’s Observations on Jefferson’s Draft of a Constitution for Virginia, 1788, Papers of Jefferson, 6: 315.
Even lesser known Americans who believed the legislatures in the 1780s created unjust laws did “not agree that judges ought to have the authority to declare such legislation void.” Gordon Wood, Empire of Liberty, 444. One such American, Richard Dobbs Spaight, delegate to the Constitutional Convention from North Carolina stated that judicial review “operated as an absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess.” Richard Spaight to James Iredell, August 12, 1787, in Griffith J. McRee, Life and Correspondence of James Iredell (New York, 1857-1858), 2; 169-70.
Some believed that “the power of the judges alone to declare unconstitutional laws void was too extreme, too exceptional, and too fearful an act to be used against all those ordinary unjust, unwise, and dangerous laws that were nevertheless not ‘so unconstitutional as to justify the Judges in refusing to give them effect.'” Gordon Wood, Empire of Liberty, 446 quoting Farrand, ed., Records of the Federal Convention, 1: 97, 73. Thus, some congressmen in 1792 considering establishing a procedure for federal judges to notify Congress when they would declare a law unconstitutional. Gordon Wood, Empire of Liberty, 446.
It is notable that so many Americans were comfortable with this increasingly powerful judiciary, with the newly created tool of judicial review. Although judicial review was used in Marbury v. Madison, it would not be used again until the Dred Scott decision in 1857. Nonetheless, Americans began to associate the judiciary with being additional representatives of Americans’ collective interests. The fact that the judiciary began to assert itself in more drastic ways into the tripartite government system, combined with most Americans’ desire to have additional representation, permitted the judiciary to become a permanent part of American life.
Further, the importance of the creation of the doctrine of judicial review could hardly be understated. While some were uncomfortable with the idea of the future of democracy occasionally being in the hands of a few judges, it provided a more neutral, reasonable filter for legislation and acts of Congress. Undoubtedly, mistakes have been made and continue to be made by the judiciary, but most Americans would take comfort that as the decades and centuries have progressed, one bad court has been counterbalanced by a good court, leaving America to go down a conscientious path of moderation.