American Civil War/ Reconstruction amendments

[Northern_Piper]

Some other quotes from that thread:

@Northern_Piper

You might be interested in Professor Treanor’s article, “Judicial Review before Marbury and Madison”. Treanor did an extensive study of court deicisions in both state and federal courts prior to the Marbury case, and found that there were numerous examples of the courts asserting that they could hold statutes unconstitutional, under state and federal constitutions.

He deals with the particular case of the Invalid Pensions Act at pp. 533-538, where all six justices of the Supreme Court, prior to Marshall’s appointment, took the view that the Act was unconstitutional because it infringed the independence of the judiciary and its separation from the executive, protected by Article III.

https://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/04/treanor.pdf

@Northern_Piper

Here’s Treanor’s lead-in to his discussion of Hayburn’s Case, which dealt with the Invalid Pensions Act:

Hayburn’s Case [1792] was a landmark in the history of judicial review and was recognized as such at the time. In 1800, when in Cooper v. Telfair the Supreme Court was considering a challenge to a state statute on state constitutional grounds, Justice Chase in the course of oral argument observed that “there is no adjudication of the Supreme Court itself upon the point” whether a congressional statute could be held unconstitutional, but also noted, “It is . . . a general opinion, it is expressly admitted by all this bar, and some of the Judges have, individually, in the Circuits, decided, that the Supreme Court can declare an act of congress to be unconstitutional . . . .” He was referring to Hayburn’s Case, the first case in which Supreme Court Justices concluded that a congressional statute was unconstitutional.

That was before Marshall was appointed to the Court in 1801, and Marbury was decided in 1803

@Northern_Piper

Came across another article, this time from 1953, where the author makes the point that there were historical antecedents for judicial review in England, and also that the issue was debated both at Philadelphia and in the ratifying conventions, notably Virginia’s, where Marshall, amongst others, spoke in favour of the doctrine: J.R. Saylor, “Judicial Review Prior to Marbury v. Madison” (1953), 7 SMU Law Review 88.

https://core.ac.uk/download/pdf/147636958.pdf

He gives the quotation from Madison which I mentioned earlier, about the need for ratification by state conventions to establish the Constitution as the supreme law:

… the difference between a system founded on the people to be the true
difference between a league or treaty, and a constitution. The former, in
point of moral obligation, might be as inviolate as the latter. In point
of political operation, there were two important distinctions in favor
of the latter. First, a law violating a treaty ratified by a preexisting
law might be respected by the judges as a law, though an unwise or
perfidious one. A law violating a constitution established by the people
themselves would be considered by the judges as null and void.