Comparing the Court’s First Two Eras

Marshall Court1801-1835

Taney Court1836-1863

Judicial Power Marbury v. Madison (1803) Luther v. Borden (1849)

Legislative Power

McCulloch v. Maryland (1819)

Dred Scott v. Sandford (1857)

Commerce Clause

Gibbons v. Ogden (1824) Cooley v. Board of Wardens (1852)

Contract Clause

Fletcher v. Peck (1810) & Trustees of Dartmouth

College v. Woodward (1819)

Charles River Bridge v. Warren Bridge

(1837)

The Civil War Amendments

Constitutional Watershed in American Federalism

13th Amendment [1865]

• Section 1. Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

• Section 2. Congress shall have power to enforce this article by appropriate legislation.

14th Amendment, ¶§ 1 [1868]

• All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

15th Amendment [1870]

• Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

• Section 2. The Congress shall have power to enforce this article by appropriate legislation.

14th Amendment, ¶§ 1 [1868]

• All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Court Deference to Business Interests 1865-1900

LOW HIGH

Slaughter House Cases (1873)

Munn v. Illinois (1877)Stone v. Mississippi

(1880)

Santa Clara County v. Southern Pacific Railroad (1886)

Mugler v. Kansas (1887)U.S. v. E.C. Knight

(1895)Allgeyer v. Louisiana

(1897)

Foreign Policy Powers: Art. I, §8• [1] The Congress shall have Power To . . . provide for the common

Defense • [3] To regulate Commerce with foreign Nations • [4] To establish an uniform Rule of Naturalization • [5] To . . . regulate the Value . . . of foreign Coin • [10] To define and punish Piracies and Felonies committed on the high

Seas, and Offences against the Law of Nations• [11] To declare War, grant Letters of Marque and Reprisal, and make

Rules concerning Captures on Land and Water• [12] To raise and support Armies • [13] To provide and maintain a Navy• [14] To make rules for the Government and Regulation of the land and

naval Forces• [15] To provide for calling forth the Militia to . . . repel Invasions• [16] To provide for organizing, arming, and disciplining the Militia, and

for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress

• [18] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Foreign Policy Powers: Art. I, §10

• [1] No State shall enter into any Treaty, Alliance, or Confederation [or] grant Letters of Marque and Reprisal.

• [2] No State shall without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports and Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of Congress.

• [3] No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact . . . with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Foreign Policy Powers: Art. II

• Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States. . . .

• He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors. . . .

• Section 3. He . . . shall receive ambassadors and other public ministers . . . and shall commission all the officers of the United States.