evolved gradually, at first in rather tentative form by the Court prior to the time John Marshall became Chief Justice in 1801 and then through a series of decisions during his term (1801-1835).
Marshall proceeded cautiously, opining in Marbury v. Madison in 1803 that the Court had the power, even if it was not ready to exercise it, to declare an Act of Congress invalid. Then in Fletcher v. Peck (1810), the Court enunciated that same power with respect to state laws. In Martins v. Hunter's Lessee (1816), Justice Story said the "people in enacting the Constitution, wanted to modify state sovereignty" (41). There then followed a series of decisions which limited the power of the states to interfere with private property rights under the supremacy, contract and commerce clauses. McCloskey says that "the contract clause became a mighty instrument for the judicial protection of property rights against state abridgement" (49). The leading contract clause case was Dartmouth College v. Woodward and the leading supremacy clause case was McCulloch v. Maryland (both in 1819).
The Court under Chief Justice Roger Taney (1836-1857) repeatedly upheld the national government's supremacy over the states but also "granted the states a degree of autonomy that Marshall would . . . have denied them" (55). In exercising restraint, "the Court was adjusting itself to the contours of a changing America" (55). State regulation of interstate commerce was permissible in areas not preempted by Congress so long as it was based on the police power of the states to protect the health and safety of its residents, as first acknowledged in New York v. Miln (1837).
Although McCloskey says that the Court was prudent to temper its nationalist tendencies with compromises which recognized the popular force of Jacksonian democracy, he is highly critical of how the Court handled the slavery question. He calls the decision in Dred Scott v. Sanford (1856) a "monumen...