James Varnum. By: John Nelson Arnold.

While during the American Revolution, the judiciary was mostly forgotten, in the interest of controlling gubernatorial power by empower legislatures, that began to change during the 1780s.

Empowering the legislatures, however, led to a fear that the legislatures would run rampant as had happened in England. The judiciary’s role became clear, particularly in the context of separation of powers: “That is the only body of men who will have an effective check upon a numerous Assembly.” See Gordon Wood, The Creation of the American Republic: 1776-1787, 454 quoting William Plumer to William Coleman, May 31, 1786, in Lynn W. Turner, William Plumer of New Hampshire, 1759-1850 (Chapel Hill, 1962), 34-35.

States such as New Jersey, Virginia, New York, Rhode Island, and North Carolina began to use their respective judiciaries as checks on their legislatures. See Gordon Wood, The Creation of the American Republic: 1776-1787, 454-55. However, some Americans, like John Dickinson, believed that “no such power ought to exist” that would vest judges with “authority to declare a law void,” which would later become known as judicial review, in the landmark case Marbury v. Madison, as explained further in A Conscientious Path of ModerationSee id. at 455 quoting James Monroe to James Madison, Nov. 22, 1788, Stanislaus M. Hamilton, ed., The Writings of James Monroe . . . (N.Y. 1898-1903), I, 196.

Prior to the creation of judicial review by the Supreme Court of the United States, inroads were made in states. For example, in the Rhode Island case Trevett v. Weeden, James Varnum presented a novel argument in favor of rendering a statute unconstitutional and void. See Gordon Wood, The Creation of the American Republic: 1776-1787, 459. He argued “that the power of construing a statute is in the Judges; for they have authority over all laws, more especially over statutes, to mold them according to reason and convenience to best and truest use.” Id. at 460 quoting James M. Varnum, The Case, Trevett against Weeden . . . Tried before the Honorable Superior Court in the County of Newport, September Term, 1786 . . . (Providence, 1787), 33, 29, 21, 22, 21, 27, 29.

Then, in North Carolina, a similar case by the North Carolina Supreme Court, Bayard v. Singleton, “declared an act of the legislature void.” Gordon Wood, The Creation of the American Republic: 1776-1787, 460-61.

A piece of correspondence between Richard Spaight and James Iredell, after the Bayard decision, would be informative of American beliefs at that time. Spaight stated that as reprehensible as the statute was, the judiciary should not have exercised such a power as the people were “governed by their representatives in the general assembly” and should not be “subject to the will of three individuals in the court, ‘who united in their own persons the legislative and judiciary powers.'” Id. at 461 quoting Richard Spaight to James Iredell, Aug. 12, 1787, Iredell to Spaight, Aug. 26, 1787, and “To the Public,” Aug. 17, 1786, all in McRee, Life of Iredell, II, 169-70, 172-76, 148.

James Iredell answered Spaight, stating that the judiciary had acted properly, as it was forced to decide whether a statute had complied with the Constitution, the most superior of all laws in the United States. See id.

Throughout all of this discussion, Americans had resoundingly rejected the British notion that legislatures held absolute power over all other branches of government. Perhaps part of this was rooted in Alexander Hamilton’s words in Federalist Number 78, which stated that the weakest branch of government should have the power to defend itself against encroachments of the other two branches of government, so as to protect the doctrine of separation of powers. See The Federalist, No. 78.

As these debates were unfolding, individuals were becoming increasingly aware of the dynamic that was playing out in the government. While some branches were becoming more powerful, others needed to have safeguards to stop any hint of tyranny or aristocracy that may occur.

More than anything, these early actions by state courts would encourage the creation of an environment in American society that would permit Chief Justice John Marshall to create judicial review in the case Marbury v. Madison. These decisions would begin to shape American public opinion to accept that the judiciary would act as a check on rampaging legislatures.

In other words, progress was gradual in calibrating the American system of government to be successful. That should be remembered, as politicians of all stripes advertise themselves to be capable of extraordinary change easily, quickly, and painlessly.