Urofsky suggests that "the Taney Court in general did not reverse but confirmed the doctrines laid
down during Marshall's long tenure, and when Taney died in 1864, one can find little evidence of a
judicial revolution."(1) If one allows that Taney was on the same track as Marshall, he was, nevertheless,
headed in the opposite direction. In fact, it is quite possible that the author is demonstrating fundamental
misunderstanding of what was going on. Probably Charles River Bridge is as representative of his dilemna
as any other. It could be described as a watershed case in the history of the Supreme Court, but that is not
to be taken as a suggestion that the term represents in any way necessarily good or bad. It would, however,
in either case, server as an important precedent in several different ways. Coming as it did as one of the
early decisions of the Taney Court, it must be seen as an affirmation of the doctrine of judicial
superintendency or review power. Although that power had been somewhat securely established by a
considerable number of rulings over the years, with Charles River Bridge we have a new Court, a different
Court, asserting its authority. Had there been a tradition of the affirmation of the power spanning more
than the Marshall Court, this would not be as significant. But that is not the case. While there were
indications of judicial supremacy in the earliest years before Marshall (and certainly in FEDERALIST #
78), it had been only the Marshall Court which had dynamically pursued it. It had, in fact, only slowly
and deliberately structured the entire conception. From its first tenuous expressions, it had grown in a not
always friendly environment, and not only were the alternative actions of nullification and interposition
very much alive politically, the entire conceptualization of states' rights and 'community' interest were
central to the thrust of the Taney Court, increasingly. Fehrenbacher reminds us that the tradition of
judicial supremacy was not truly firmly established until this century. (2) This question, in fact, was a key
to the Court's opinion in the Bridge case. It is certainly conceivable that the Justices might have gone a
different route. They might have simply denied jurisdiction. The fact that they did not do so, and that
instead a new Court heralding in a new era in constitutional history, and proclaiming the banner of states'
rights, reaffirmed the authority of the Court, albeit in toward altered ends, was a critical precedent  in its
establishment.                                                           

     The Taney Court, or course, in time, was to go much further in this direction. And yet the decision
reflected  a considerably different development. In this Massachusetts bridge opinion, the Taney justices
were giving life to a different sort of economic order than that  prescribed by Marshall. They were
asserting a variant set of legal rules of economic development. 

     In Gibbons, Marshall had been afforded a last opportunity to add another brick to his moral economic
order before the winds began to blow against him and it. Gibbons had argued that the acts of the New
York legislature were in conflict with federal coastal licensure acts of the 1789-93 period. The statutes
interfered with the commerce clause power of Congress to regulate interstate commerce, traffic between
New York and New Jersey constituting interstate commerce. The monopoly which New York had granted
to Fulton was said to be one of impairment of competition and thereby to economic development. The
injunction which Ogden had obtained from a New York court enjoining Gibbons' competing steamship
line from operating  should therefore be struck down. This permitted Marshall to explore the powers of
the commerce clause for Congress and to determine what commerce, and interstate commerce, actually
meant. The scarcity of capital and the willingness of entrepreneurs might necessitate protected monopolies
as an encouragement. The case might therefore work to limit internal improvements. Related questions as
to other forms of transport such as bridges or railroads operating in proximity would affect transport
development in the world of scarce capital particularly. The steamboat people would argue that such
systems would violate the monopoly.

     Marshall voided the New York monopoly statute in order to free economic energy. He affirmed the
power of Congress and enhanced the Supreme Court's power of review, ruling that if states acted in such a
way as to undermine enumerated powers of Congress that were designed to promote the general advantage
of the American people, then those efforts would have to fail. If it voided a contract when previous
opinions had ruled them nearly sacrosanct, it was on that basis, which prevailed, that it was done.  But
here, Marshall was operating from the perspective that it was the federal government and courts that were
to be the guiding force in national economic development. For Taney, in the bridge case, as generally, it
was the state legislature, the local interest, which should have that role.

     In 1837, the question was essentially the same, as to whether the original charter conferred an implied
monopoly and the new charter was an encroachment on that, and thus breach the original contract with a
private corporation and thereby violate the contract clause of the Constitution. The attorney for Charles
River Bridge argued that to allow the new contract to stand would jeopardize both property and prosperity
in that permitting the violation of contract would undermine public faith in government and risk the
investment of venture capital. The Warren Bridge counsel suggested that the new bridge would serve
public interest less expensively (an argument for progress and social development), that it was the result
of altered social circumstances (that law should be adaptable to progress), and that the legislature should
not be hamstrung by limitations of past, now outmoded, legislation, and thus impair new technology.

     In his opinion, Taney relied heavily on great quantities of British law (the only American law relevant
on the topic was from Marshall). In this, he provided perhaps not only a watershed, but even an opening
of the floodgates. He further interjected Jacksonian political economy in holding that all ambiguities in
language from the old rules and statutes should operate against the interests of adventurers (i.e.
entrepreneurs or speculative investors) and for the 'community' it there was any doubt in the matter. While
the rights of private property (a veiled reference to slavery, too) were sacred and to be guarded, Taney
expressed the view that the community also had rights, and that the happiness and well-being of every
citizen relied on their faithful preservation. While he did not definitively explain the concept of
community, he believed that rules about economic development would have to be made by the community,
that while the rights of private property had value, the rights of the community were paramount!

     In determining that there was no implied monopoly here, he was providing a watershed from which all
subsequent contracts could flow with more and more specificity, as well, from which the protection of the
locality would build in the cause of dual federalism or states' rights, and from which community rules
concerning slavery (the preservation of all things wholly municipal such as slavery) would proceed.

     This may not have been a sharp juncture from Marshall in all areas, as Urofsky goes to pains to point
out, but it did indicate unmistakable new directions aside from the important concept of guiding force. It
departed from the Marshall Court's doctrine of vested rights in support for new dynamic capital which
held contracts as inviolable by states, for example, and retreated from Marshall's broad view of the
commerce clause. Taney was supporting new directions for business but completely grounded in his
concept of comity based in community. 

     Story's dissent, in concurrence with the only other pre-Jackson justice Smith Thompson, demonstrates
the kernel of the divergence. This was a different idea of who was to make the rules, most especially as
they related to the economy. His dissent proceeded from American precedent and viewed the decision as
unlawful in ignoring that body of law and moving away from it, away from the moral economic republic.
Charles River Bridge thus is very much a watershed in Court history. In setting upon a very different set
of rules regarding economic guidance and in promulgating the notion of community in place of the moral
economic order that had prevailed, it would contribute to the rising tide that would tear the nation apart.
Corollary to that, it provided some grounds for the defense of slavery. And beyond all that, it had a deep
impact on contract law, opened the process to augmenting American law with an infusion of British (and
later even sociological theory) precedent, and greatly enhanced, at the same time, the doctrine of judicial
superintendency or review. Unlike current efforts to devolve federal administrative authority to state
government for efficiency and efficacy, this was a bold attempt to block economic and political
nationalization and development.  

     The driving force in the colonization effort, the Revolution itself, and in the effort to forge the eventual
constitutional order, gravitated around the axis of economic development and the positive effort at the
encouragement of industrial capitalism. It has been argued that the substance of the Constitution was the
creation of a vehicle of government to foster that very thing. The Marshall Court not only spanned a
period of transportation and industrial revolution, but in actuality played a significant and conscious role
in spawning it. The circle of men that the justices were representative of were about that. The moral
economic order that was the trademark of the Court was premised in that political economy of nation
building. In their work, they strengthened the implied and enumerated powers of the several federal
departments in the effort at the dual sovereignty which would hoist the national government into a
position to be the guiding force toward that structuring an adequate base for the economy of scale that was
essential to its construction.

     Given the political realities during the period which left the Court as the primary sector with such a
conviction pitted against the Jeffersonians and later the Jacksonians with a very different vision for the
nation, their commitment to the belief that there were certain possibilities  available to them as moral
judges so striving was only enhanced. It is also the case that they and their allies were increasingly
throughout the period to be in a position of striving toward such ends from a rearguard position against
the array of such forces. Thus they sought to attach the interests of powerful economic forces grouped to
the central power and to nationalism generally. They had to defend the idea of vested rights against the
phenomena of legislative and executive barbarism against it, and harness critical bits of the Constitution
to their order to preserve and promote it. In particular, four bits of the Constitution were especially
important to this quest -- the Supremacy Clause, the Elastic Clause, the Commerce Clause, and the
Contract Clause. Together, they served as the instruments of Marshall firmly establishing his
jurisprudence of federalism, political nationalism, judicial nationalism, and supremacy, and discretionary
government which informed his moral economic order. Beginning in Marbury and generally after that in
small doses, the Marshall Court proceeded to establish firmly the power of review, her over federal acts
and in other rulings again and again over state action. In doing this, the justices were placing the federal
government at the helm as the guiding force in political economic matters, while simultaneously
providing for the Court a role of navigator in directing the voyage. From the invocation of the supremacy
clause in that way, the Court had positioned itself to similarly apply the Commerce and Contract clauses.
They proceeded to advance these in the Bank Cases (which also legitimized the B.U. S. as an instrument
in that order). The Steamboat Case (Gibbons v. Ogden), using the Elastic clause to enhance the
Commerce clause, extended the regulation of interstate commerce by Congress as a cog in the wheel of
forging the national moral economic order.                                     
                                                                                                                                       Furtherance of that role through the Contract clause worked through the other three. In Fletcher,
Wilson, Hunters' Lesee, Green v. Biddle, Tarrott, Wood, DeVeaux, Dartmouth, Sturges, et al, the
Supreme Court exercised judicial review to define contract and place it beyond state abridgment, and
augmented that enforcement of agreements to establish the corporation as a mechanism of capital
formation out of state reach of impairment. This legal science of republicanism expressed the particular
vision referred to above of encouraging economic activity by encouraging investment. In the effort, they
could promote the necessary infrastructure including canal building, the steam revolution in
manufacturing and transportation, all so reliant on contract and corporation(it also proved to be an
important avenue in the development of a real body of American tort law). They were providing the basis
for the extension of such a vision over the country as it spanned the continent providing the substance of
an economy of scale to fuel the engine of economic growth. 

      However, the rear-guard effort by the Court and its allies began to weaken more as the Court came
increasingly under control of forces with a different vision for the country and the federal role. While they
suggested that they were promoting economic progress and technological innovation through a
democratized process, they were in fact turning the economy over to pet banks and financier interest, as
well as the slavocracy. Indeed, the major factor in the spread across the continent came to be couched in
terms of extension of slavery rather than economic progress, at least primarily. Texas and the Mexican
Cession revolved around that issue as did the organization of the old Louisiana Territory and the
settlement of the Oregon dispute, which excluded Russian and what might be called Whig interests in
favor of at least potentiality of slavery extension. The division of the country which became so attenuated
through the decade of the fifties actually presaged the Compromise of 1850, Kansas-Nebraska Acts, and
Dred Scott in the impact of the Jeffersonians and Jacksonians. Popular sovereignty may have attached
greater promotion and protection of slavery, but the idea was not new, the Jacksonians having supported it
back in the 1830's. Their democratization never was meant for blacks, and they had always considered
black people, slave or free, as inherently inferior, and without political identity. If they wanted to save the
Union, it would be a Union which allowed the protection of slavery. By the 1850's, the case law, which
had been moving steadily in the direction of Dred Scott, would move so far as to contribute to repeal of
Personal Safety Laws in the North. Even the deadlock over admission of new states reflects the problem. It
was not always as it seemed. When Michigan was admitted in 1837 with Jackson sanction, it was a 'free'
state, but one dominated by Jacksonian Democrats like Lewis Cass, and the votes it brought to Congress
would be in that wise. Jacksonian constitutional law is really but the tip of the iceberg regarding the
treatment of Indians in the 1830's as well. Lewis Cass, as Jackson's Secretary of  War, carried out the
Seminole War and Black Hawk War as well as the Removal on the Trail of Tears, but he was also the
champion of 'popular sovereignty,' was Buchanan's Secretary of State at the time of secession, and was a
mentor of sorts to another famous Michigan Democrat, George Armstrong Custer. Constitutionally, the
standing of the Indians was not much different than that of black  people, especially to the Jacksonians.
Jackson wanted them removed from the South both in order to pursue 'development' there -- by which was
meant the extension of the plantation system of slavery (effectively, the second Diaspora) -- and because
he sought a 'benevolent' separation of the races. While Marshall had considered that Removal might be
stopped by invoking the doctrine dating back to Jay that States could not violate federal treaties, he instead
transferred their status in the law into one of 'domestic dependent nations,' but at that juncture, it didn't
matter anyway, because Jackson simply ignored the Court's directives. When Marshall wrote in the federal
mode, whether on such topics, or in regard to contract or relation of corporations and their agents,
Jackson easily disregarded it.

     Possibly no character in our history has been so mythified as has Abraham Lincoln. With the possible
exception of Washington, Lincoln has taken a place as the seminal figure in our national pantheon. Were
some calamity to befall contemporary civilization and veil the present period from future generations far
into the future, or perhaps were alien intelligence to peruse our culture, they might well draw the
inference from the display of Lincoln in coin, currency, monument, school and court house, that was
indeed a deity. Hofstader commences his consideration of Lincoln in THE AMERICAN POLITICAL
TRADITION with a related assertion:

	"The Lincoln legend has come to have a hold on the American imagination that
	defies comparison with anything else in political mythology." (3)

     In scholarship, that 'deification' has faced some increasing progression of challenge as to the validity of
its basis, to the extent that demythification has even reached in places a level of denigration. While that
species of analysis may not permeate our popular culture (except perhaps in some Southern states, where
Lincoln's birthday does not even today close banks), it must be weighed in any proper evaluation of
interpretations of Lincoln. That serves to point up one of the critical shortcomings inherent in scholarship
-- academic interpretations of Lincoln probably have little to do with popular conceptions. The role of
such a symbol in the political culture does not reflect very well (or at least very soon) scholarly discourse
in interpretation. But that caveat does not make such consideration less important or necessary even if it is
ultimately to be rendered mute. What emerges from such a sorting process, while it will inevitably
challenge the beatification that might seem to have developed around this personage, is an apotheosis of
Lincoln of a far different and more important nature than is regularly accorded. Abraham Lincoln
traditionally and popularly has personified in many respects what has come to be an idealized version of
what an 'American' is -- a real life Horatio Alger who breathes life into the fancy than anyone might grow
up to be President (or whatever), even a poor backwoods country boy born in a log cabin. His portrayal as
the 'Great Emancipator' has taken on dimensions that nearly equate him a symbol with the Declaration of
Independence as an expression of the essence of our Revolution in terms of perceptions of freedom and
liberty. Lincoln, himself, speaking to a regiment in Ohio, said as much (4). And Hofstader sees Lincoln's
savior-like side as complemented with that aspect of our nation's experience, that of the self-made man.
And while he refers to this strain as a myth (5), he does little, at least in discussing Lincoln, to dispel it.

     That viewpoint has presented some problems for some scholars. C. Vann Woodward contends in his
THE STRANGE CAREER OF JIM CROW  (6) that as the North had become firmly set in favor of white
supremacy as well as segregation and subordination of blacks, Lincoln's expressed position on such
matters was not to him dissimilar. Woodward offer quotes illustrative, for him, of a Lincoln view that 
we cannot, then make them equal," and further, from 1858:

	"I will say then that I am not, and never have been in favor of bringing about
	in any way the social and political equality of the white and black races -- that 
	I am not nor ever have been in favor of making voters or jurors of negroes, nor
	of qualifying them to hold office, nor to intermarry with white people, and I will
	say in addition to this that there is a physical difference between the black and
	white races which I believe will forever forbid the two races living together on 
	terms of social and political equality. And inasmuch as they cannot so live, 
	while they do remain together there must be the position of superior and inferior,
	and I as much as any other man am in favor of having the superior position 
	assigned to the white race."

     On the surface, such a position would be potentially problematic for Lincoln's role as an exemplar for
'the American race,' apparently excluding some large numbers from participation in it, but there are some
important issues here which the commentary overlooks -- that of context and misinterpretation. It may
well be that Lincoln sincerely harbored such sentiments. The greater political culture of his time was
permeated with racialism that might have made such words seem positively enlightened, even if they
hardly seem so today. Yet there were those surprisingly perhaps free of such bias, especially in some
literary circles. And Frederich Douglass did not share that opinion regarding Lincoln (7). In addition to
that, it must be remembered that such expression spoken in the context of political discourse may indicate
something much different than they appear to in isolation. Where Lincoln contends that he would not do
anything to disturb the South's peculiar institution, for example, it must be remembered that there was
absolutely no legal basis for him to do so, either in private life or elective office, whether that be the
Senate of the White House. They were framed by debate over the issue of extension of slavery which was
the great issue of national contention at the time. As President, his ultimate test, by oath, was to preserve
the Constitution, but these words were uttered during the Illinois Senate campaign debates, some time
before he was anywhere near the White House.

     That is not to suggest that they could not have been shallow political utterances which do not
correspond to his true convictions -- outright misrepresentations to garner votes.  While this is, of course,
possible and it should not be suggested that Lincoln, as Washington is sometimes portrayed, would never
tell a lie, it is more likely that they came in response to a particular political point either in  response to a
statement by his opponent or in the context of framing a question being posed to that adversary. In either
case, the circumstances would tend to temper the meaning. The perception of 'Honest Abe' of popular
usage is simply raised to a higher manifold, although Hofstader makes a point of Lincoln's honesty and
humility, of his pathos and plainness (8).  It would be much more useful to weigh such words in the
balance of both subsequent actions and in the context of the speaker's overall political economic
background. There would seem to be a superficial contradiction between Lincoln saying that he would
never tamper with a State's domestic institutions and the fact that he did just that during the Civil War.
His particular political culture was a Whig political economy built upon policy to advance industry which
stood in diametric opposition to such labor intensive institutions. 

     Paul Simon has documented the depth of the connection Lincoln had (without specifically putting it in
those terms) with the Whig or American System faction in his analysis back through Lincoln's legislative
voting record (LINCOLN'S PREPARATION FOR GREATNESS --- THE ILLINOIS LEGISLATIVE
YEARS). Still further, arguing that equality could not be obtained does not mean that he would not act to
achieve it were it possible or that he would do nothing that might lend itself ultimately toward that end.
There are substantive comments by Lincoln which suggest just such a position such as his words in
Hofstader as to not knowing what to do about slavery if he had the power to effect changes (9). Similarly,
the suggestions regarding his disinclination toward actions to guarantee civil rights for black people are
contradicted by subsequent actions, his political economy, and comments made in other circumstances.
The 'physical differences' which precluded equality could be construed to mean simply the popular
culture's aversion or problems regarding it -- it may refer to merely difference of skin tone and not to any
innate biological inferiority of black people supposed by Lincoln. And the final sentence of the latter
Woodward quotation as to relative superiority and inferiority is premised upon the first part of the
sentence which holds that the two groups "cannot so live..." Lincoln's actions during the war and his
proposed Reconstruction plans suggest that his mind possessed something deeper, as does his argument
that a black woman could be supposed to be his equal in important respects. Both Fehrenbacher and
Strozier could seem to concur in this view (Fehrenbacher in PRELUDE TO GREATNESS and Strozier in
LINCOLN'S QUEST FOR UNION: PUBLIC AND PRIVATE MEANINGS). Thomas Fleming wrote in
the National Review (10) of a "mean streak" in Lincoln's language style when he was "thwarted." He
branded the often quoted reference to Lincoln's remarks that as he would not want to have a black woman
as a slave, neither would he want her for a wife, to be an example of his "racial humor." But as part of a
general response to Fleming, Harry Jaffa wrote in the Review a month later that in this matter as many
others discussed, Fleming was way off the mark:

	"Fleming omits the rest of what Lincoln said about this Negro woman: 
	he could just leave her alone. Elsewhere Lincoln would say -- as Fleming
	fails to report -- that in her natural right to put into her mouth the bread
	that her own hand had earned, the Negro woman was his equal, the equal
	of Judge Douglas, and the equal of any man." (11)



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