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51 Pages

Substantive Due Process, Selective Incorporation, and the Late-Nineteenth Century Overthrow of John Marshall's Constitutional Jurisprudence

WithRobert L. Clinton

The dominant contemporary view of the John Marshall Court encompasses that Court's supposed "judicial activism" in cases involving property rights and federalism. The jurisprudence which resulted from the Marshall Court's conception of judicial review was overthrown in comprehensive fashion with the onset of modern judicial activism in the late-nineteenth century, enjoyed a brief resurgence in the mid-twentieth century, and was once again repudiated. The enormity of the transformation which resulted from the overthrow of Marshall's jurisprudence and the institution of the mythical, Muglerite Marbury as the modern model for judicial review becomes fully apparent when one examines the cases wherein the Court set aside state and federal laws in the early-twentieth century. As the Old Court had done in Chicago, Burlington & Quincy R.R, v. Chicago in 1897, the Court once again joined the doctrines of "selective incorporation" and substantive due process in order to fashion a new set of constitutional rights.