a hitherto accustomed field of state power with unavoidable curtailment
of the latter was a matter of indifference. State power, as Madison in
his early nationalistic days phrased it, was "no criterion of national
power," and hence no independent limitation thereof.

Quite different was the outlook of the Court over which Marshall's
successor, Taney, presided. That Court took as its point of departure
the Tenth Amendment, which reads, "The powers not delegated to the
United States by this Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people." In
construing this provision the Court under Taney sometimes talked as if
it regarded all the reserved powers of the States as limiting national
power; at other times it talked as if it regarded certain subjects as
reserved exclusively to the States, slavery being, of course, the
outstanding instance.[11]

But whether following the one line of reasoning or the other, the Taney
Court subtly transformed its function, and so that of Judicial Review,
in relation to the Federal System. Marshall viewed the Court as
primarily an organ of the National Government and of its supremacy. The
Court under Taney regarded itself as standing outside of and above both
the National Government and the States, and as vested with a
quasi-arbitral function between two centers of diverse, but essentially
equal, because "sovereign", powers. Thus in Ableman _v._ Booth, which
was decided on the eve of the War between the States, we find Taney
himself using this arresting language:

This judicial power was justly regarded as indispensable, not
merely to maintain the supremacy of the laws of the United
States, but also to guard the States from any encroachment