Page:Moore v. Harper.pdf/17

12 that are alleged to violate the Federal Constitution in Marbury v. Madison, proclaiming that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177 (1803). Marbury confronted and rejected the argument that Congress may exceed constitutional limits on the exercise of its authority. “Certainly all those who have framed written constitutions,” we reasoned, “contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.” Ibid.

Marbury proclaimed our authority to invalidate laws that violate the Federal Constitution, but it did not fashion this concept out of whole cloth. Before the Constitutional Convention convened in the summer of 1787, a number of state courts had already moved “in isolated but important cases to impose restraints on what the legislatures were enacting as law.” G. Wood, The Creation of the American Republic 1776–1787, pp. 454–455 (1969). Although judicial review emerged cautiously, it matured throughout the founding era. These state court decisions provided a model for James Madison, Alexander Hamilton, and others who would later defend the principle of judicial review.

In the 1786 case Trevett v. Weeden, for example, lawyer James Varnum challenged a Rhode Island statute on the ground that it failed to provide the right to a jury trial. Although Rhode Island lacked a written constitution, Varnum argued that the State nevertheless had a constitution reflecting the basic historical rights of the English. And, he contended, the courts must honor “the principles of the constitution in preference to any acts of the General Assembly.” J. Varnum, The Case, Trevett v. Weeden, reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 424 (1971). Varnum won, to the dismay of the State’s legislature, which replaced four of the five judges involved. W. Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev.