a Supreme Court whose birthright was uncertain." After a tentative beginning, the Court under the strong and deft leadership of Marshall established the principle of judicial review, the power of the federal courts to declare federal and state laws and executive acts unconstitutional. In a series of landmark cases, Marshall's Court expanded the frontiers of federal power under the supremacy, necessary and proper, treaty-making, contract and commerce clauses of the Constitution. McCloskey said "the dominant judicial value . . . was . . . preserving the American Union."
Taney was appointed to the Court by President Andrew Jackson and, according to Schwartz, was "one of the foremost exponents of Jacksonian democracy." Schwartz says that "Taney's years on the Court marked growing judicial concern for safeguarding the rights of the community as opposed to property rights --of the public, as opposed to private welfare." One way the Taney Court did this was by permitting the states to have a concurrent role in the regulation of foreign and interstate commerce with the federal government, pursuant to its exercise of its police power --i.e to safeguard the health, safety and welfare of its citizens, so long as by doing so, it did not conflict with any federal statutes. This rule was enunciated in a number of cases prior to 1850. In Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 319 (1851), Justice Benjamin Curtis for the Court, in upholding a Pennsylvania pilotage fee for the port of Philadelphia, said that the states were precluded from the power of regulating commerce only when "subjects of that power are by their nature national, or admit only of one uniform system, or plan of regulation . . . [so] as to require exclusive legislation by Congress." Schwartz said "the Court has basically followed the Cooley approach in cases involving the validity of state regulations of commerce."
According to Schwartz, even tho...