The Constitution in the Supreme Court: Contracts and Commerce, 1836-1864
Pue aiu vurnal VOLUME 1983 JUNE NUMBER 3 THE CONSTITUTION IN THE SUPREME COURT: CONTRACTS AND COMMERCE, 1836-1864 DAVID P. CURRIE* Continuing a study of thefirst hundredyears of constitutionalliti- gation, Professor Currie explores the decisions of the Taneyperiod re- specting the Contract and Commerce Clauses. Though early decisions ofthe Taney Courtseemed to portenda departurefromthe nationalism of its predecessor, the author argues that the impression was largely misleading. In general,for example, the Court under Taney proved rathersympathetic to contractrights. In Commerce Clause cases, after being badly split, the Court was able to agree on a longlastingformula that acknowledged an implicit limitation on statepower, and although in the Taney periodthe Court never clearly struck down a state law on Commerce Clausegrounds, itfoundother ways to protect the interest in unobstructedcommerce. The fourth installment of a critical examination of early Supreme Court constitutional decisions,' this article begins to deal with the nearly thirty-year period during which Roger B. Taney was Chief Jus- tice. Taney's appointment in 1836 marked a watershed in the member- * Harry N. Wyatt Professor of Law, University of Chicago. My thanks to the Duke University School of Law, where this paper was delivered as the Brainerd Currie Memorial Lecture; to my colleagues Frank Easterbrook, Dennis Hutchinson, and Rayman Solomon for their helpful criticism; and to Mark Holmes and Roy Underhill for valuable research assistance. 1. See Currie, The Constitution in the Supreme Court, 1789-1801, 48 U. CHI. L. REv. 819 (1981) [hereinafter cited as Currie, Supreme Court, 1789-1801]; Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 1801-1835, 49 U.
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