xt7wwp9t2q46_101 https://exploreuk.uky.edu/dips/xt7wwp9t2q46/data/mets.xml https://exploreuk.uky.edu/dips/xt7wwp9t2q46/data/59m61.dao.xml American Liberty League 37 linear feet archival material English University of Kentucky This digital resource may be freely searched and displayed.  Permission must be received for subsequent distribution in print or electronically.  Physical rights are retained by the owning repository.  Copyright is retained in accordance with U. S. copyright laws.  For information about permissions to reproduce or publish, contact the Special Collections Research Center. Jouett Shouse Collection (American Liberty League Pamphlets), No. 104 "The Power of Federal Courts to Declare Acts of Congress Unconstitutional" Speech of Hon. John H. Hatcher, President of the Supreme Court of Appeals, State of West Virginia before the Charleston, West Virginia Bar Association, January 25, 1936 text No. 104 "The Power of Federal Courts to Declare Acts of Congress Unconstitutional" Speech of Hon. John H. Hatcher, President of the Supreme Court of Appeals, State of West Virginia before the Charleston, West Virginia Bar Association, January 25, 1936 2013 https://exploreuk.uky.edu/dips/xt7wwp9t2q46/data/59m61/59m61_104/Am_Lib_Leag_104_001/Am_Lib_Leag_104_001.pdf section false xt7wwp9t2q46_101 xt7wwp9t2q46 AN INVITATION TO JOIN THE   I L ·
AMERICAN LIBERTY LEAGUE   ir ir
  The Power of Federal
We extend to every American citizen who believes in Q Courts t0  
the fundamental principles which gave birth to the E
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supported entirely by the voluntary gifts of our § SP€€°h Gf
"‘°“"’°'“·   _ HoN. Jomv H. HATCHER
ENROLLMENT BLANK § President of the Supreme Court of Appeals
‘ § State of West Virginia
Dat°———————————————-—--———— E before the
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104 S Document No. 104

   The Power of Federal Courts to
  Declare Acts of Congress
j Unconstitutional
( ·k
  THE RULIN GS of the Supreme Court of the
E United States on the N.R.A. and the A.A.A. have
i been followed by blustering challenges of the
E authority of the Court to declare an Act of
i Congress unconstitutional. This has occurred
each time the Court has so ruled since 1803.
The present challengers make the same time-
worn charges as their predecessors, which are:
(1) That because we derived our legal proce-
§ dure from England, and the English courts
( claimed no power to review Acts of Parliament,
  it was unprecedented for the Federal courts to
  review Acts of Congress; (2) that this juris-
W   diction was “unknown" to the Fathers of the
HEN yen have finished with this   American Constitution; (3) that this jurisdic-
pamphlet please Pass it on to Some ( tion was ‘°unintended” by the Fathers; (4) that
. . . Chief Justice John Marshall originated the idea,
friend or acquaintance who might be and "put it over” in the case of Marbury v.
interested, calling his nttentien to the 1 Madison in 1803; and (5) that "There is not a
membership blank On page 24.   line in the Federal Constitution * * * to au-
; thorize the assumption of such power by the
  Courts; they have secured the power only by `
Y usurpation.”
I
i THESE CHARGES ignore facts as well as logi-
i cal sequence. Yet they were made in the last
i Congress without contradiction. They have been
{ reiterated in occasional editorials without de-
* tailed refutation. Since the people ordinarily
3 Q believe what they read, errors of fact on a sub-
ject so vital in our scheme of government should
not go unexposed. Therefore, let us set these
charges (as enumerated) against the historical
background and the contemporary foreground
  of the Constitution.
L FIRST. It is quite true that English courts
  prior to 1787 (the date of the National Consti-
{ tutional Convention) recognized the absolute
. 3

 supremacy of an Act of Parliament. That recog- the common law but is a development of colo-
nition, however, was not due to a conception of nial practice, as I shall now demonstrate.
legislative immunity from judicial review, but SECOND. The colonial governments in
to the fact that Parliament acted in a dual America were the issue of specific grants from
capacity—as both legislature and court. Parlia- . the King and were thus “connected to England
ment was a court (curia regis) before it ever through the Crown and not through Parliament
assumed legislative powers; and it was and al- or any other governmental division of the king-
ways had been from its inception the highest dom.” Long, Genesis ofthe Constitution. Those
court of England. An Act of Parliament was a grants authorized the establishment of a limited
y both supremely legislative and supremely ju- form of self-government, and were usually called
dicial} Moreover, in the words of Viscount I charters, although the ones to New Hampshire,
Bryce, one of England’s greatest writers on con- ( New Jersey and North Carolina were styled
stitutional law, “Parliament is not a body with   constitutions. The comprehensive nature of
delegated or limited authority. The whole full-   those instruments is demonstrated by the fact
ness of popular power dwells in it. The whole f that when the colonies renounced the rule of
nation is supposed to be present within its England, three states-——Massachusetts, Connecti-
walls.”2 Magna Charta and the other bulwarks   cut and Rhode Island--adopted their several
of English liberty restrain only the kingly charters as their state constitutions with no
power. Parliament itself is subject to no con- change except the substitution of allegiance to
stitutional restraint. Parliament is “omnipo- the State for that to the King.8 The colonial
tent.” (Bryce.) Congress has no judicial power charters were in fact all constitutions} and
(except in relation to its own members and to were generalized in the Declaration of Inde-
impeachments) and even its legislative powers pendence as "our constitution.” The charters
are enumerated and limited by the Constitu- differed much in the specific power granted
tion. Consequently there is no ground what- or denied; but they had this common provision,
ever for judges to rank an Act of Congress as that local legislation should not be contrary to
they would an Act of Parliament. the laws of England. That provision was
The few jurists who have controverted the adapted from the Constitution of the Island of
judicial right to review congressional legislation Jersey. The chronicle quaintly recites that
have based their arguments largely on the com- “Jersey, Guernsey and their fellows (Channel
mon law esteem of Acts of Parliament. Each Islands) are simply that part of the Norman
of those jurists overlooked the fundamental Dutchy which clave to its dukes when the rest
differences between Parliament and Congress; fell away.” 5 And because Jersey clave to the line
each overlooked the designation of Parliament of Duke William, the Norman, after he con-
in the declaration of Independence as “a juris- ` quered England in the eleventh century, Jersey
diction * * * unacknowledged by our laws;" if became an English province. But it retained
each overlooked the patent fact that the com- ‘ the right of self-government, under a constitu-
mon law is not a part of the supreme law of the tion of its own, subject only to the power of the
land as defined by the Constitution; and each English King, acting through his Privy Council
overlooked the historical fact that the American or other representative, to disapprove its local
idea of judicial review is not an off-shoot of laws. That same power was expressly asserted
‘Pope, 27 Harv. Law Rev. 45; Haines Am. Doctrine “ Bryce, 413 et seq.
Jud. Supremacy 8, et seq. ’ ‘Fowler, 29 Am. Law Rev. 711, 717-8; Haines, 65.
’ Bryce, American Commonwealth, 246. ‘ Larned History 4837.
4 5

 in some of the colonial charters, but whether "inasmuch as they conceived said Act to be un-
mentioned or not it was one Jersey practice constitutional.” °
which was common to all colonies? Pursuant
to that practice, the colonial laws were con- FOLLOWING the colonial period, some of the
etahtly reered by therr eherrere aha by the lalye state legislatures, Parliament-like, attempted to
ef Ehglahll The extent el that Plaellee rs assume absolute powers, but such assumptions
shewh by the laet lhal_heal`ly leur huhlllell met with general disapproval. The right of
eere el; eelehlal _aeeelhhlleS wel`e_ ahhullell PY the courts to test legislation under the State
the Prlyy Ceuhell (er a helly aetlhg uhtlel lt) Constitutions was quickly asserted in eight of
heeauee they fha net peer rher leeh A neted the thirteen new states.l° One J. H. Ralston of
instance was 1n the case of Wznthrop rv. Lech- { Washington, D_ Cu has published e Survey ef i
mere (1727-8% Where ree Prrw Ceerrerl here e it this period which would show that prier to
Cehheelleue Pleylhetal ser ef, heally lhllly V 1787 judicial review of state legislation had
Yeere Stahtllhg tg be lgvellll ee eehtlary re the n been sporadic and unpopular. His publication
law ef the realm aha agalhel the lehel ef therr   is now cited as authority by the critics of the
charter.” The invalidation of a colonial Act Supreme Ccurt_ His remarks shculd be sc_
wee read er least ehee in every eeurte ehee in cepted with caution. For example, he not only
every ehurehe and ehee er the mtlrtery muetere miscalled a leading Virginia decision “dicta,”
throughoutrthe colony} Thus the colonists he- but further misdescribed it as follows: “lu 1782,
eame famlllar Wllh that Pl`aetlee• The Pl°eVlh' in Virginia, in the case of Commonwealth v.
cial laws, says Professor Dickerson in his careful Ceten, twc judges asserted the right cf thc
work eh America"' Celenial Government; were court to resist the unconstitutional act of the
COIlSta.I1t].y   to “H   of COHStitutIOI131 legislaturer and the   was d0ubtful•7’ 11 The
reer" aryl in tltrs wey the eelehlele srew aeeus' Virginia Court of Appeals, which decided that
tomed, to a l1m1tat1on Ulzflll their local loglsla- ease, eerrsisred of eleven judges instead of threo-
tures- He frrrrher eeyei The Parallel berweee One judge was not doubtful of his right to pass
Brlttslt e°ler*ts'l_Preetree end Present deY Urrrred on the constitutionality of the Act in question,
States practice is clear in the case of laws from but wss cf Opinion that it Wes unnecessary to
chartered colonies, as the charter was a written do S0_ “The rest Of the judges were of cpinion,"
constitution. The local legislature was limited in the Wcrds cf the decisicn itself, erthet the
by the terms ef the greet (eherterli it e Pewer court had power to declare any resolution or
hed net, teen grentede rt eeeid het be exerelsed act of the legislature * * * to be unconstitu-
Iesellr Hew reereeshly eherrer-mmded the aehei ami void,” sha they aid declare the eei
colonists became is illustrated by a decision of rrincneretiveye because net passed in manner
rhe Judgee ef the Heeriese Ceurr ef Nerrhemp- i pl-eyhieii by the Virginia COIISTIIHIIOH. The
teh Ceuhtye Vlrglhlae eherlly befere the ReVelu' { case is reported in 4 Call 5. The sentiment of
trene heltllhg that a eertem Aet ef Parllamertt t that period towards the legislative assumption
was net hlhtllhg eh the lhhahltahts ef Vrrgmre t of judicial powers IS well reflected 1n a request
i———-—-·—-·-—- I • • •
i t l
·ie,..ii, Am. ei. Le. ei. iieye, Le.   ieee. i ez the Ceeeeee e Ceeereee mee re ever
5 McMasters Hist. U. S. 394; Dicey, Const. 160; Fowler, 1¢87» re eeverel state tegrstetures Whleh had as'
217 Am. Law Rev. 399, 405 et seq. ...4...
2 Bruce Inst. Hist. Va. in 17th Century, 507. _
SAID. Col. Gov.   Gt S€q. Accord: GYCCHC, F0`I1IldZl·   Rev   et Seq. Haines ch V,
tions of Am. Nationality, 203, 239; Haines, ch. III; Fowler 2e Am new Rev 73.1 7Zt1_2 ’ ° ° ’
Thayer 3; Andrews Col. Background, 49, 50. 1154 aAm_ Lats Rem 1_ ' ’ °
6 7

 . sumed the right to construe the recent treaty Martin, was that “The constitutionality of laws
with England. The legislatures were requested * * * will come before the `ud es in their offi-
to turn over all matters affecting the treaty “to cial character. In this chailactir they have a
its proper department, viz, the judicial.” Sev- negative on the laws.” Thus the facts demon-
eral state judges who had taken art in the strate, first, that it was the veto ower as such
decisions on constitutional questionspwere mem- which was denied the judiciaryii, and second;
bers of the Federal Constitutional Convention. that a major reason for the denial was the
Much newspaper publicity was given the de- understanding of Martin and his associates (the
cisions, particularly in Philadelphia at the time majority) that the Constitution they were fram-
tlie tConvent1;mtlwas liil sesiion.   qjuestion ing.wou(l:d confer on] tjie jpdiciary glje gighdtf to
w a ever as o e in orma 1on o e onven- review on ressiona e is ation. t e t -
tion on this subject is removed by the notes of is five delegaiies who attgnded the Conventiofi,
delegate James Madison. They show that within only three———Bedford, Mercer and Dickinson-
a few days after a quorum of delegates had as- clearly expressed themselves against judicial re-
sembled, Elbridge Gerr of Massachusetts said 4 view, and the did not ress their views. Thei
to the Convention: “Inysome states the judges failure to do go is not sgecifically explained. Ilt
had actually set aside laws as being against the does appear, however, that after the Convention
Constitution.” He further added: “This was was assured “that the jurisdiction given (the
done, too, with general approbation.” S0, in- federal courts) was constructive] limited to
stead of judicial power to determine the validity cases of a judiciary nature,” the yamendments
of legislation under a written constitution being which phrased the jurisdiction in its final form
an innovation in 1787, it had been exercised (Article III of the Constitution) were passed
in America under colonial and state govern- “nem c0n,” the classical slan of Madison for
ments successively for a hundred years prior to no one against. (Incidentally? it also appears
the Convention. that Dickinson later favored judicial review.)
THIRD. The opponents of the judicial re-
view of legislation say that such review could
not possibly have been intended by the found- DEAN TlllCKETT or tno Dickinson Coiiege
ers, because the right was ycfuscd {cut- timcs at law School fancied himself brilliantly sarcastic
the National Convention. The opponents refer Wnen he rererreei to rne SnPreme Court as “P1‘e·
to the rejection of a so-called council of revi· tending te heVe meteenigtams t1‘0m thi? dcfullct
sion. Here are the unvarnished facts. The Vir- 111611 of 1787 and 1788 concerning their meaning
ginia delegates proposed to the Convention a when they adopted this or that phrase of the
council on which the judiciary should share Constitution.” Instead of being sarcastic, the
with the chief executive the power to veto Con- ,.. Dcan was Simp]y amusing. There is no need
gressional legislation. Advocates of the council   Of marconigrams from the men of 178-L8 en the
admitted t1'e¤kiY that in exercising ine. Vero   meaning of Article III. They left their con-
powcle tllc -1ll(lg?S_W°lllll Pass on tllc Pollcy as   struction in writing too plain to be misunder-
well as the Valldlty 0f laws' _ The Same tw? stood. Under the title “Genuine Information ”
arguments were advanced against the counc1l L ther Martin t d t h 1 . 1  
each time it was presented to the Convention. u mpiir 6 0 t C Cgls aww of hm
One argument was that the policy of the law Stat? (Maryland) In N0V?mbcr’ l787’ the pm'
was a legislative and not a judicial matter. The cccdings of the Convention and explained in
eth e r argument, ee expr eee e d by delegate Luther detail the meaning of the several provisions of
8 9

 the Constitution. With reference tot the power A PROMINENT eastern newspaper recently
vested 1n the Federal Courts by Article III, he dispttrttged judicial review pot only as uSurpt_t_
wrote: “These courts and these only will have . 66 .
( _ _ _ tive, but as abhorrent to our American system
a right to decide upon the laws of the United ,,
, , , , of government. No precedent for that asper-
States and all questions arising upon the1r con- _ _
struction ,, * r Whether therefore any laws s1on can be found 1n the records of the early
' 9 9 • ,
Or regulations of the Congress Or any acts of sessions of Congress. The first Congress met 1n
9
its President or other oflicers, are contrary to, 1789 That eaasrass IS eeeredlted Wrrh nmerY
or not warranted by the Constitution, rests only memrlersv or Whom alshtaan had been delegates
with the judges * * * to determine? In nn],. to the National Convention, and thirty-one had
lieetiene (The Federalist) explaining the (jen. been delegates to the State Conventions which ~
stitution to the people of the State of New as had ratified the Constitution. Thus the Con-
York, Alexander Hamilton, also a member of stitution makers dominated that Congress. The
tha National Convention, placed thc same can- _ right of judicial review was not only treated by
struction on Art1cle III as that of Mart1n. In *· those Congressmen ae e matter ef course, but
the debates before the several State Conven- was exteiied by Some Elias Boudinot the
. . . . . » —
tions which ratified the Constitution, James · ig · . ,
_ _ _ riend and counsellor of Wash1ngton———say1ng
Wilson of Pennsylvania, Oliver Ellsworth of h . . ,6 . ,
_ _ _ t at th1s right was his boast and his confi-
Connecticut (later a Chief Justice of the Su- dtmcer I id ri ti p _ h _
preme Court of the United States), W. R. Davie ` cou H t at as _t quesuened ry
of North Carolina, and George Mason of Vir- only one ‘Pemr"’{"¤ James M¤·l1¤¤¤» who¤ Wmle
ginia, all members of the National Convention, deueg S°’ meenslsrenrry admrrred that “ln the
and delegates Samuel Adams in Massachusetts, ordmory oodrse of government, the eXP0Slri0I1
and Petrie]; Henry, Edmund Pendleton, John of the laws and constitution devolves upon the
Marshall, George Nicholas and William Gray- lddlelal`Y•” The Fadaral Judiciary Act paSSo•.l
son, in Virginia, each construed Article III like by that Congress explicitly recognized the right
Martin. (That very construction was used by of the Supreme Court on appeal from state
some as the basis for attacking the Constitu- courts, to review Acts of Congress. That recog- (
hon.) The 1‘eP0rtSt0l: tha Preeeedlngs ln rlle nition has continued unto this very day and
elillerlstatebcenlgenrlens ara fragmentary ir ln' may be found in the present Federal Code, Title
carp ere’ at t are rs aa rece? e e Smg e ex` 28, section 344. Had those Congressmen who
pI1C1t dissent to that construction in any of the 1 it _ _ _
_ _ _ · recent y spo e so contemptuously of _]ud1c1al re-
Conventions. Newspapers published 1n 1788-9, View ivtm thou ntf i ,d _ ti
in every State from North Carolina to Massa- i tig d, , Ag Irl come cmtmn to t C Fed`
chusetts, inclusive, whether friend or foe of the *~ ere h u lclery ce t av mlght have been rreed¤
Constitution, uniformly construed Article III to m t e rjards or Burner rrom manY a blunder
empower the Federal Judiciary re pass on the P and foolish notion. The r1ght of Judicial re-
constitutionality of Congressional legislation}2 *· View was rePearedlY declared ln sueeeedillg Sos-
That construction was even reflected in a Lon- erode of Congress Wlrllenli any Ceneertod opposi-
tion newspaper of that era in an ttrtieie written tion until 1802. Those early Congressmen were
by tt New York eerreenendenn overwhelmingly in accord with the construction
given to Article III by the members of the Na-
1, Warren, 656; Ford Paniehien on the Constitution; tional, and the State, Conventions, respectively.
F°l`d· Essays an tha eonsigudod After reviewing with great care the utterances
11

 of the Congressmen on this subject from 1789 tion makers, or from the sentiment of the Con-
to 1802, Warren in his book, Congress, the Con- stitution making period. After some declama-
stitution, and the Supreme Court, observes; tory questions about the Constitution, he merely
°°Hence it is an especially striking fact that summarized what llc called his “iti€a 011 the
members of Congress, of both parties (Fed- sl1bject” Without giving a substantial basis for
eralist and Anti-Federalist) should have been that id¢8· N0!1€ of his S¤pp01’t€1‘S W€1'€ 11101‘e
practically united in one sentiment at least, that convincing. Conceding proper motives, the per-
under the Constitution it was the Judiciary sonal ideas of the Breckenridge coterie on the
which was finally to determine the validity of science of government, unaccompanied by argu-
an Act of Congress.” 13 ment, are of little weight on what the Constitu-
tion was intended to mean, what it was con-
_ Y, tem oraneousl construed to mean and what
IN 1802, for the first time 1n the history of it . P . Y °
_ 1ts phrases fa1rly defined do mean. Many of the
Congress, John Breckenr1dge of Kentucky, the . . . . .
_ _ 1 Fathers of the Const1tut1on were still alive 1n
J effersoman leader 1n the Senate, attempted the t,
_ _ _ 1802. Some were members of that Congress.
organ1zat1on of a movement to establish the ex- . . .
, _ , “ _ It was close enough in p01Dt of t1me to 1787 for
clus1ve right of Congress to 1nterpret the Con- . . .
t_ _ _ h t d th 1 k_ the Congressmen to be thoroughly familiar w1th
S Kumi? m W a mga? S_ _ C SW-ma mg the thoughts of the Fathers on Article Ill.
power. Opponents of judicial rev1ew quote . .
_ _ _ _ _ Those thoughts are manifested in the summary
w1th much unct1on the rhetorical denunciation .
_ manner Congress spurned the Breckenr1dge doc-
thereof by Senator Breckenridge; but they do . .
_ _ tr1ne. It was referred to by Representative
not quote the replies to Breckenr1dge or say H . .
_ _ enderson of North Carolina 1n these words:
what happened to h1s attempt. Notw1thstand- rr . ‘ · `
_ h_ _ h d H _ h The monstrous and unheard of doctrme which
nig ls I?mSug?’ 6 ma C Sma Progress Wu has been lately advanced;” and by Senator Ross
h1s doctr1ne, being supported only by a few asso- · · re · ·
_ { V_ _ _ K k G _ d of Pennsylvan1a 1n these: By this horr1d doc-
Clatas mm u,gmm’ emuc Y’ corgm tm trine, Con ress erects itself into a com lete
N B c 1· B 1 · · B k g P
Ort am ma’ a OPC ess mm°mty‘ mc cn` tyranny.” Democrats united with Federalists
ridge had taken bsfm the Ksmuckr Lssidsture in repudiating the Breckenridge aeerrire. The
in 1798, the exact reverse of the position he ad- stalwart Northern Dcrnocrat, Bacon of Massa.
vanccd in C0¤g1`e$S in 1802-1* His sincerity hes chusetts, voiced the sentiments of most of his .
been further impugned by some writers.15 The associates when he asserted on the floor of the
motives for his attack on judicial review, how- House that it was not only the right of the Fed-
ever, have nothing to do with the right of such eral judges but it was "their indispensable duty
review. That right must be determined from * * * tv Judge ter themselves en the eensttttb
the Constitution itself, irradiated by contem- I ttOttatttY Ot ;Vet`Y statute tm Wttteh they are
porary thought. The speech of Breckenridge called t° act'
before the Senate presenting his position fails  
in that 1`esPeet· Hs dtd net attemPt to smstYZe IMMEDIATELY following the organization of
the language of the Constitution, or to elucidate the Fcdcra] Court by (jongrcss in 1789, thc
its mcallillg f1‘01I1 lilli?. expressions of tl'1B COI1Stitl1· Federal judges commenced to assert their right
t —-—·· to review legislation. One of those early jurists
if $2:;;;*   was Associate Justice William Patterson, who
“Warren; 219. — had been a member of the National Convention.
12 V 13

 A more positive pronouncement of 11118 1’igl11 seems pertinent. He was fundamentally a states’
was never made than one by him in 1795 (in rights man. The expansion of National power
Vanhorne v. Dorrance, 2 Dal. 304, 309), as fol- under the Federal Government hadbeen par-
lows: "I take it to be a clear position, that if 1 ticularly odious to him. He had attempted to
a legislative act oppugns a constitutional prin- check that expansion through the celebrated
ciple, the former must give way and be rejected Virginia and Kentucky Resolutions of 1798,
on the force of repugnance. I hold it to be a wherein the respective legislatures of those two
position equally clear and sound, that in such states protested to the other states that certain
case, it will be the duty of the court to adhere Acts of Congress were infractions of the Con-
to the Constitution and to declare the act null stitution, and that the states had the inherent
and void.” It will be remarked that this pro- right to say so. North Carolina, South Carolina
nouncement was made six years before John · and Georgia did not either formally approve or
lV1H1‘Sl18ll°S 6PP0i1111116111 to 1116 $1111161116 C01111, ~ disapprove the Resolutions.‘° Delaware and
which did 1101 066111 until 1801. 1 8111 mindful Connecticut disapproved the Resolutions in
that Associate Justice Chase approached that * strong terms. Rhode Island, Massachusetts, New
construction hesitantly in 1796 (Hylton v. U. S., York, New Hampshire, Vermont and Pennsyl-
3 Dal- 171, 175) 3 11111 111 1800 (U- S- 6- C¢1l16nd6F`, vania not only disapproved the Resolutions, but
25 Fed. C65- 239, 253, 256-7) 61161 116 116*1 “d6· expressly stated that the authority to declare
liberately 001181*161‘611 1116 811l8j661” (1118 W01118) Acts of Congress unconstitutional was vested
he asserted the doctrine of judicial review just exclusively by tho Constitution in the Fodors]
68 811011glY 68 11611 -11181166 1361161801% 1`61118111g courts. The reply of Rhode Island to Virginia
6V611 to 11661 61‘g11m6111 to 1116 contrary by A1' (in February, 1799) illustrates the position
torney General Witt of Virginia. taken by the six states last mentioned, to-wit:
It would seem that the uniform construction 661]:1 tho opinion gf this logislstnyo the Second
111666*1 011 A1`11616 111 by 1116 *1616g6168 W110 section of third article of the Constitution of
phrased it, by the contemporary publications, the United States, in these words, to-wit, ‘The
by 1116 S1616 C011V611110118 W111611 1611116*1 1116 (1011* judicial power shall extend to all cases arising
8111111101% 1>Y 1116 661`1Y 868810118 of C011S1'688, 611*1 under the laws of the United States’ vests in
by 1116 661‘1Y 1116*16161 J11*1g68 1**0111*1 116V6 68161* the Federal courts exclusively, and in the Su-
11Sl'1€d that COI1St1`I1ClZ10I1 b€yOI1d P€1’&dVCI1lZl1I‘€. pygmg Cgurt Of thg Unitgd States, ultimately,
FOURTH. However, in 1803, John Marshall, the authority of deciding on the constitution-
(111161 -11181166 of 1116 S11P1`6m6 C0111`1, W1016 1116 ality of any act or law of the Congress of the
opinion in the case of Marbury v. Madison, United States.” 11 And mind you——this was also
which was destined to become the controversial done before John Marshall wrote Marbury v.
case on this subject. The facts in that case are Madison. The attitude of the other states to-
of no consequence here; it became controversial wards the Virginia and Kentucky Resolutions
not because of its facts, but because Thomas was a keen disappointment to Jefferson. Upon
Jefferson took umbrage at what he termed an his election as president, shortly afterwards, he
“obiter dissertation" in the opinion, pronounc- then contemplated checking federal expansion
ing the right of the court to review Acts of Con- tl11‘011gl1 1116 16*16161 001111- To 11161 611*1- 116
gress. The critics of the Supreme Court have planned te make hie ee1here¤t»8Pe¤eer Beane ef
placed such emphasis on J efferson’s opposition ———-—-———
to judicial review that some comment thereon 1** Haines 190-1. p
14 "4 Elliott’s Debates on Fi?]. Const. 528, et seq.

 Virginia, Chief Justice of the Supreme Court. declared in favor of the right of judicial review.
J eiferson was frustrated in this through the last- A fourth associate—Bushrod Washington——had
minute appointment of Marshall to that oiHce been a member of the Virginia Convention
by the retiring President Adams. It is now ac- which ratified the Constitution, and there had i
cepted that two bitterer political enemies never heard it unanimously construed to grant that
lived within the bounds of the Old Dominion right. The statement that Marshall coerced or
than Jefferson and Marshall.18 “From the day even influenced the Court to concur in Marbury
of Marshall’s appointment,” says Haines, in The ·v. Madison is purely arbitrary. In that opinion,
American Doctrine of Judicial Supremacy, “J ef- he merely restated the sentiment previously de-
ferson planned for his removal and aimed to clared not only by three of his associate justices
curb the powers of his court.” *9 J efferson’s and by six sovereign states, but in the words of
Partisanship must have been at least a factor in · Senator Beveridge, “by hundreds of men.” 21
his opposition to judicial review. For, in his The arguments in that opinion are simply repe-
Notes on Virginia, written in 1781, he had titions of the arguments made in the Congres-
strongly criticized the very theory of govern- ¤ sional debates in 1802 (particularly those of
ment later proposed by his lieutenant, Brecken- Representatives Hemphill, Stanley, Dana and
ridge, in Congress, saying that the assumption Bacon). Instead of that opinion being the root,
of judicial and executive powers by the Virginia it was the {lower of a growth rooted in America
legislature was "precisely the definition of des- a century before. That opinion, however, caused
potic government.” 20 Furthermore, Jefferson the embers kindled by Breckenridge in 1802 to
was in France while the Constitutional Conven- flare again. The animosity of the Jeifersonian
tion was in session and had no part whatever in group against Marshall led its extremists either
phrasing Article III. Now who should be pre- to forget or to overlook the history and prece-
ferred on the construction thereof, the Fathers dents supporting the right of judicial review,
or Jefferson? and (after a few years) to characterize the
That same Mr. Ralston, heretofore referred 0Pi¤i011 ill Mélrblwy v- Madison as an original
to, says that Marshall in 1796 as counsel in and dangerous usurpation of power. And from
Ware v. Hylton advocated precisely the opposite that time to this, those who oppose the right of
view to that expressed in Marbury v. Madison. H judicial review, ordinarily ignore its genealogy
Again, I find that Mr. Ralston is in error. In and continue to signalize Marbury v. Madison
Ware 12. Hylton, Marshall was discussing a Vir- in the same manner as the Jeffersonian ex-
‘ ginia Act under the Virginia Constitution tremists. A recent Congressional Record quotes
(which has no provision similar to Article III a Representative from West Virginia as stigma-
of the Federal Constitution) and he did not tizing Marbury v. Madison as “the most brazen
even mention the powers of the Federal Courts . judicial announcement ever made.” According
under the Federal Constitution. to the Record, he attributed to justices of the
peace the power, under that opinion, to nullify
FIVE associate justices sat with Marshall in Acts Of COngmSS’ and he than proceeded to y
1803. Three of his assoc1ates—Patterson, Chase Qof Marshall 118.
and CuSh1H€"‘had PUOY thereto unequivocally The statements of what occurred in the Federal Con-
_____._ vention and the State Conventions are taken for the
,;%...1, Am.   1...., J.],   .9