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Full-Text Articles in Legal History
Resolving Political Questions Into Judicial Questions: Tocqueville's Thesis Revisited, Mark Graber
Resolving Political Questions Into Judicial Questions: Tocqueville's Thesis Revisited, Mark Graber
Mark Graber
This paper explores whether national political questions during the second party system were resolved into questions adjudicated by the Supreme Court of the United States. The essay details an appropriate test for Tocqueville’s thesis, demonstrates that most national political questions that excited Jacksonians were not resolved into judicial questions, and explains why Tocqueville’s thesis does not accurately describe national constitutional politics during the three decades before the Civil War. That most political questions were not resolved into judicial questions during the three decades before the Civil War given common political science claim that “(v)irtually any issue the Court might wish …
James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark Graber
James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark Graber
Mark Graber
James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25, for the maintenance of judicial power in the United States during the transition from …