CONTENTS

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Criticism of the courts is not new in the history of

the United States.

Jefferson's letter to Judge Spencer Roane in 1821,

criticising Marshall's decision in Cohens v.

Virginia

Attempts in early years of nineteenth century to

curb the Federal judiciary, by making judges

removable on the address of the two Houses of

Congress, or by having them elected for short

terms

The Democratic Review of January, 1838, on the

Supreme Court during the Marshall régime

Cessation of these efforts after Marshall's death

Modern criticism of the courts is based more upon

economic than upon political grounds

Judges charged with usurpation of power in setting

aside laws.

The modern theory that there is not a line in the

Constitution to warrant it

The thesis of this essay stated, which is, the members

of the Federal Convention and the State ratify-

ing conventions meant to confer upon the Federal

judiciary power to nullify unconstitutional legis-

lation, State and Federal .

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The Legal Tender Cases. Mr. Richard C. McMur-

trie denies the jurisdiction of the Supreme Court

to declare a legislative act void. Statement of

McMurtrie's conclusions .

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Rejoinder to McMurtrie by Brinton Coxe in an

essay on "Judicial Power and Unconstitutional

Legislation.

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Brief summary of Coxe's views. The judicial power

does not rest upon inference, but upon the express

text of the Constitution. Similar power had been

recognized in other jurisdictions, as the framers

of the Constitution were well aware. Examples

cited from foreign laws, including the Roman
law and the canon law. Some foreign cases in
which legislative acts were held to be void.

Cases prior to the English Revolution of 1688

The case of Geddes v. Hales, and judicial recall

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The State judiciaries had set aside laws before

the formation of the present government of the

United States. Cases are well known, though

few in number

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Brief account of some early State cases in which

laws were set aside as unconstitutional. Case of

Josiah Philips, in Virginia; Commonwealth v.

Caton, Hopkins, and Lamb, Virginia; Rutgers v.

Waddington; Trevett v. Weeden; Den d. Bayard

v. Singleton

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Views of James Iredell, afterwards Associate Justice

of the Supreme Court of the United States, upon
the controversy in Bayard v. Singleton. His
“Letter of an Elector" and his “Reply to

Richard Dobbs Spaight.”

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Infractions by the States of provisions of the treaty

with Great Britain a cause of disquietude. The

Congress of the Confederation issues a circular

letter to the States asking them to repeal all

State legislation inimical to the treaty and

to have their State courts declare such legislation

void

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Gravity of the situation when the Convention assem-

bled at Philadelphia in May, 1787. Importance

of establishing some modus vivendi

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The Convention decides to arm the Federal judiciary

with power to declare laws unconstitutional

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Erroneous view of Chief Justice Clark of the Supreme

Court of North Carolina that nothing in the

Constitution indicates that the Convention meant

to give the courts power to declare an act of

Congress void

Debates in the Convention as proof to the contrary 44

Momentous significance of the resolution offered in

the Convention by Luther Martin, July 17th 45

Evolution of the supreme law clause from the Martin

resolution; evolution of the judicial system 48, 50

The Convention never voted not to give the judges,

as judges, authority to set aside unconstitutional

laws. Sources of the erroneous assumption that

it did so vote upon four different occasions.

What the Convention four times voted down was

a proposition to establish a Council of Revision.

The nature of this proposed Council. The Coun-

cil of Revision in New York State

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Intent of members of the Convention as evidenced by

their utterances. Views of Rufus King, Elbridge

Gerry, Gouverneur Morris, James Madison,

Roger Sherman, Charles Pinckney, Luther Mar-

tin, Charles Mason, John Dickinson, Edward

Rutledge

Light upon intent of the Constitution makers as

derived from debates in which they participated

in the ratifying conventions. Ratifying conven-

tions were held in all States except Rhode Island

James Wilson's arguments in the Pennsylvania con-

vention

Arguments of Patrick Henry, Madison, Marshall,

Grayson, Governor Randolph, and Pendleton

before the Virginia ratifying convention

Luther Martin's address before the legislature of

Maryland; his replies to Ellsworth's "Letters

of a Landholder.”

Charles Pinckney's arguments before the South

Carolina ratifying convention

Speeches in the North Carolina convention of 1788 by

William R. Davie, Iredell, and Spaight. Spaight's

attitude misinterpreted. Evidence that he sub-

sequently approved Iredell's doctrine that the

judiciary had inherent power to nullify uncon-

stitutional laws

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Debates in the Massachusetts convention

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Elbridge Gerry's letter to the Speaker of the House

of Representatives of Massachusetts.

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Oliver Ellsworth before the Connecticut ratifying

convention

Hamilton's arguments in the Federalist

Federalist (Nos.

LXXVIII., LXXX., XLIV.) that the judiciary

has power to set aside laws

Evidence derived from section 25 of the Judiciary

Act of September 25, 1789, and the views in

debate upon the act expressed by senators and

representatives formerly members of the Federal

Convention of 1787

Origin of the antagonistic notion that the courts have

no power to override unconstitutional laws.

This took its rise in the Kentucky and Virginia

resolutions, 1798, 1799. These resolutions briefly

considered. Counter-resolutions from several

northern States

Debate in the Senate and the House in 1802 upon the

repeal of the Judiciary Bill of 1801. Light from

the debate upon the intent of the framers of the

Constitution to give the Federal courts power to

set aside legislation

Daniel Webster cited as a witness to show that the

power was expressly and intentionally conferred

Citations made from Webster's Reply to Hayne, in

1830, his reply to Calhoun, in 1833, and his

speech at the dinner given in his honor in New

York City, March 10, 1831

Coincidence of the view of Chief Justice John B.

Gibson of Pennsylvania with that of Webster

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Recapitulation

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