Oregon Law Review : Vol. 88, No. 1 (2009)

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Oregon Law Review : Vol. 88 No. 1, p.095-156 : James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25
(University of Oregon Law School, 2009) Graber, Mark A.
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.