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CONTENTS
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
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I
Cessation of these efforts after Marshall's death
3
Modern criticism of the courts is based more upon
economic than upon political grounds
The modern theory that there is not a line in the
Constitution to warrant it
4
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.
6
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.
.
7
Rejoinder to McMurtrie by Brinton Coxe in an
essay on "Judicial Power and Unconstitutional
Legislation."
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
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
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
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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14
15
20
32, 34
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
Gravity of the situation when the Convention assem- bled at Philadelphia in May, 1787. Importance of establishing some modus vivendi
The Convention decides to arm the Federal judiciary
with power to declare laws unconstitutional
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
Momentous significance of the resolution offered in
the Convention by Luther Martin, July 17th
Evolution of the supreme law clause from the Martin
resolution; evolution of the judicial system
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
36
4I
42
44
45
48, 50
53
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
57
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
62
63
65
68
69
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
70
Debates in the Massachusetts convention
74
Elbridge Gerry's letter to the Speaker of the House
of Representatives of Massachusetts.
Oliver Ellsworth before the Connecticut ratifying
convention
Hamilton's arguments in the 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
Recapitulation
75
76
81
83
85
89
90
98
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