Judicial Review,Nationalism,and the Commerce Clause: Contrasting Antebellum and Postbellum Supreme Court Decision Making

Abstract

The still-influential progressive interpretation of American constitutional history conceives the property-oriented judicial activism of the Supreme Court in the late-nineteenth and early-twentieth centuries (the era of laissez faire) to have been a natural and logical outgrowth of similar orientations on the Marshall and Taney Courts. It is contended here that the progressive theory is rooted in a serious misinterpretation of the early Supreme Court's constitutional decision making. Far from extending the lines of development laid down by its predecessors, the turn-of-the-century Court in fact uprooted the most important traditions of the antebellum era on the issues of national power, commercial regulation, and the scope of the judicial function.