Constitutional Longevity. Was Religiosity...

Justin Schwartz jschwart at
Mon Jun 15 15:44:06 PDT 1998

On Mon, 15 Jun 1998 Dhlazare at wrote:

> Huh? The court that opined that black had no rights that whites were bound to
> respect was NOT reactionary?!?!?

I didn't say that. I said that separation of powers was not a reactionary doctribe, nor even a particularly significant one until the rise of the administrative state. Separation of powers plays no role that I can recall in the Dred Scott decision to which you allude. Incidentally the line about blacks javing to rights taht whites were bound to respect was not the Courts, but Taney's own. There wwere nine oinions in that case and no one joined anyone else's.

The supreme court was anything but limited
> under John Marshall, who turned it into an all-important Federalist redoubt
> following Jefferson's "Revolution of 1800."

But unlike the Lochnwer Court, which struck down legislation as uncoinstitutional on a regular basis, Marshall did it once, in Marbury. The Court did not use the implied power of judicial review again until Dred Scott. That strikes me as pretty limited. Recall also taht the Court in those days ould not rule on the validity of state legislation in the way that it could after the 14th AMendment. Its scope for reviews was much mor restricted than subsequently.

The post-Civil War court
> represented a return what it had been under Roger Taney, an Andrew Jackson-
> appointee and author of the infamous Dred Scott decision, in the 1830s, 40s,
> and 50s.

No, it was much worse, at least the Lochner Court was. The Taney Court, Dred Scott excepted, was pretty restrained and fairly responsible. And Dredd Scott was at the very end of Taney's tenure. The Lochner Court was bad from start to finish.

As for checks and balances and separation of powers, these doctrines
> were vitally important throughout the antebellum period.

Case cites, please. I can't recall any significant cases where theese were an issue. Recall that seperation of powers concerns intra-federal, branch-branch relations, to be distinguished from what we call federalism, concerning state-federal relations.


> Dan Lazare
> In a message dated 98-06-15 08:15:27 EDT, you write:
> <<
> Therea re some inaccuracies here. Before the civil war, the US was an
> agrarian republic, not a capitalistr state dominated by corporations. The
> Supreme Court before the war was a far more limited institution, having
> used uits power to invalidate a federal law exactly twice in the
> anre-bellum period (Marbury and Dred Scott). In that period the Court was
> hardly a recationary institution as it became under the Lochner-era
> leadership, with aggressive use of the 14th Amendment to attack
> progressive-era state legislation.
> Checks and abalances and seperation of powers are doctrines that apply
> within the relation of the branches of the federal government. Far from
> being a natioanl rerligion I do not think they were particularly important
> until the 'teens, when the rise of the administrative state began to raise
> questions that involved them. And they are not reactioonary doctrines, or
> even particularly conservative.
> --jks
> >>

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