Abstract:
The following pages explore how judicial review survived the
transition from the deferential politics of the National
Republican/Federalist era to the partisan politics of Jacksonian
America. Part I details the political foundations of federal judicial
power, particularly the crucial role section 25 of the Judiciary Act of
1789 played in establishing and maintaining the Supreme Court’s
power to declare state—and federal—laws unconstitutional. Part II
explains why the transition from Federalist to National Republican
rule during the beginning of the nineteenth century posed little threat
to judicial authority. Part III discusses the Jacksonian challenge to
federal judicial power, why that challenge failed in 1831, and why
that challenge was largely abandoned by 1837. Part IV points out
how political fragmentation explains the failure of both the
Jacksonian challenge to judicial power and the subsequent attacks on
the judiciary in American history. This analysis concludes that
judicial review is likely to become a permanent feature of the
constitutional landscape once established in a polity where power is
almost always fragmented.