It has often been noted that there were serious doubts in 1803 about the constitutionality of the Louisiana Purchase. Interestingly, it was not until 1828--a quarter of a century later--that the Supreme Court stated that "The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory either by conquest or by treaty." *American Insurance Company v. Canter,* 26 U.S. (1 Pet.) 511 (1828).
http://supreme.justia.com/us/26/511/case.html
This is an example of a frequent theme of mine: People think of the Supreme Court as the key body in deciding issues of constitutional law, but in fact it quite often only "decides" such issues years or even decades after they had been decided elsewhere as a practical matter. I once joked in soc.history.what-if that *Texas v. White* 74 US 700 (1869)
http://www.law.cornell.edu/supremecourt/text/74/700 merely reaffirmed what had been decided about secession in *Grant v. Lee* (Appomattox Court House 1865). The Tenure of Office Act, for alleged violation of which Andrew Johnson had been impeached, was in effect retrospectively declared unconstitutional in *Myers v. United States,* 272 US 52 (1926).
https://supreme.justia.com/cases/federal/us/272/52/case.html (By that time, the disrepute attached to the Johnson impeachment had long since made it very unlikely that Congress would again attempt to deprive the President of the right to dimiss Cabinet officers; the statute in *Myers* had to do with dismissal of postmasters. Even Brandeis, dissenting, said "We need not determine whether the President, acting alone, may remove high political officers.")
But here is my favorite example of the Supreme Court's tardiness in deciding constitutional issues: They finally ruled on the constitutionality of the protective tariff *in 1928*, almost a century after the Nullification Crisis! *J. W. Hampton, Jr. & Co. v. United States,* 276 US 394 (1928)
https://supreme.justia.com/cases/federal/us/276/394/case.html By that time even Democrats had pretty much given up arguing that any tariff not "for revenue only" was unconstitutional [1]--and in practice, no tariff, not even those passed by Democratic Congresses, was ever based on such an assumption--and so the Court's unanimous decision sustaining protection was no surprise.
Suppose the Court had ruled on the constitutionality of the protective tariff much earlier. I doubt that at any point in history it would have declared protection unconstitutional. Obviously not under the Marshall Court and not under any of the mostly Republican-appointed courts from the ACW to the New Deal. Could the Taney Court have done so? I doubt it, for these reasons:
(1) Taney and other Jacksonians were never as passionately opposed to the tariff as to say, Biddle's Bank; they were always more willing to compromise. (Ironically, the most militantly anti-tariff group, the South Carolina Nullifers, were pro-Bank![2]) Jackson himself, with his military background, thought there was a case for protection of industries needed for national defense.
(2) As the Court noted in *Hampton*, the First Congress, which contained many members of the 1787 Constitutonal Convention, had passed the first tariff law, which was explicitly "for the support of government, for the discharge of the debts of the United States, *and the encouragement and protection of manufactures*" (emphasis added). It is true that not everything the First Congress did was necessarily constitutional--after all, the Court in *Marbury v. Madison* had held unconstitutional part of the Judiciary Act passed by that same First Congress. But by the time the Taney Court would consider the matter, they would be dealing with decades of at least somewhat protective tariffs, and would be reluctant to find that *every* Congress since the beginning of the Republic had violated the Constitution.
(3) No tariff law has ever frankly stated that its purpose is *purely* protective. They all have purported to be at least in part for revenue, with protection as an additional purpose. (And that is certainly the case with the tariffs with which the Taney Court would deal.) Courts in the nineteenth century were generaly reluctant to look beyond the stated purposes of laws to discover the "real" motives.
(4) Even assuming that the revenue justification could be proven a sham, and that it was clear that the sole object of a particular tariff was to reduce or even eliminate competition from a foreign nation--and obviously a completely prohibitive tariff would not raise any revenue--it would seem that Congress would have the right to do this under its power to regulate commerce with foreign nations. Thus, cases striking down "pretextual" taxes--even had such cases already existed at the time--would be irrelevant. Those cases held that Congress could not use its taxing power to assume a power it did not have under the Constitution (e.g., regulating child labor). But keeping out foreign products is a power it apparently had under the Commerce Clause, so if a tariff was merely an indirect way of doing something Congress could do directly, it is hard to see what the objection is. (The late David Currie makes this point in *The Constitution in the Supreme Court: The Second Century, 1888-1986*, p. 174, n. 22.
http://books.google.com/books?id=M5rrJjT0t08C&pg=PA174 "[T]he tariff could not be considered as a means to an illegitimate end, because Congress could have accomplished its protective goal by direct regulation under the commerce clause." The Nullifiers, however, would have replied that the power to *regulate* foreign commerce did not imply the power to *destroy* it. In this, they were of course taking states' rights much further than the Jeffersonians, who had after all enacted the Embargo...)
So if there is going to be a decision, it will doubtless be in favor of the protective tariff. What difference will this make? Probably not much. The Democrats of course maintained for decades that a national bank was unconstitutional even though the Supreme Court had upheld such a bank in *McCulloch v. Maryland.* In this ATL the Democrats will continue to insist that the only constitutional justification for tariffs is revenue--while continuing to pass laws which provide "incidental" protection. As for the Nullifiers, much of their polemic was an argument that as a sovereign state, South Carolina had the right to determine for itself whether federal laws encroached on her rights, whatever the Supreme Court said. Clearly they expected that if there were a court case, it would go against them (of course the fact this was still the Marshall Court and not the Taney one made this even more certain).
Thoughts?
[1] Indeed, the Raskob-inspired 1928 Democratic platform gave up the traditional Democratic atacks on the protective tariff, promising "The maintenance of legitimate business and a high standard of wages for American labor" and merely stating that "Actual difference between the cost of production at home and abroad, with adequate safeguard for the wage of the American laborer must be the extreme measure of every tariff rate."
http://www.presidency.ucsb.edu/ws/?pid=29594 (Of course if the tariff "only" equalized the cost of production at home and abroad it is hard to see why there would be any foreign trade at all! See Paul Samuelson's comment that the pleas for a "scientific" tariff equalizing the cost of producton at home and abroad were among the "most vicious" protectionist arguments of all.
https://archive.org/stream/in.ernet...-An-Introductory-Analysis#page/n585/mode/2up/ ) No wonder that the Washington correspondent of *The Protectionist* commented that the plank was 'designed to assure business that the party, if returned to power, will not undertake downward revision of a kind to create alarm." Allan J. Lichtman, *Prejudice and the Old Politics: The Presidential Election of 1928,* p. 179.
http://books.google.com/books?id=KbGiJpDk6pwC&pg=PA179
[2] Biddle even wrote some doggerel in George McDuffie's honor:
Some would hang poor McDuffie for being a nully
And others abhor him for acting the bully:
But bully or nully he may be, for me,
When the Bank is in danger--no bully like he.
(Quoted in John A. Munroe, *Louis McLane: Federalist and Jacksonian*, p. 380)