Saturday, March 14, 2009

James Buchanan, Savior?

Lawrence Solum recommends an article by Mark A. Graber, James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25. Here's a portion of the abstract:
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 . . ..

Unfortunately, the full abstract suggests that Prof. Graber (the author of a book on Dred Scott that I haven't read) is somewhat longwinded and given to jargon ("Judicial power, the evidence from 1831 and other times suggests, thrives in a political environment more characterized by intercurrence than realignment.").

Nonetheless, the underlying subject matter looks interesting. For you non-lawyers, the "Section 25" of the title is Section 25 of the Judiciary Act of 1789, passed by the First Congress to set up the federal court system. The text is here. Section 25, in Prof. Graber's words,
authorized the Supreme Court to review state court decisions upholding state laws against federal constitutional attack, declaring federal laws unconstitutional, or rejecting claims of federal constitutional right. Repeal for all practical purposes would have abolished federal judicial review of state laws and severely curtailed federal judicial review of national laws.

Apparently, in 1831, the House Judiciary Committee issued a report recommending the repeal of Section 25. "[James] Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the repeal," and his analysis carried the day.

The topic looks particularly interesting because of the date: 1831 was fewer than two years before the Nullification Crisis. The proposed repeal of Section 25 would have facilitated Nullification tremendously. Or, rather, perhaps it would have made political Nullification unnecessary, because the same end could have been accomplished through the state judiciary. Assume, for example, that the South Carolina Supreme Court held in 1832 that the tariff was unconstitutional and ordered imported goods released without payment of the tariff. No Section 25, no appeal to the U.S. Supreme Court, no remedy.

I haven't looked at the Judiciary Committee Report yet. Who wants to bet there was a South Carolinian or two sitting on the Committee?

Note to self: check David Currie.

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