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The Court and the Old Dominion: Judicial Review Among the Virginia Jeffersonians

Published online by Cambridge University Press:  15 March 2017

Jordan T. Cash
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Extract

Over the past 30 years, a growing amount of scholarly attention has been paid to forms of constitutional interpretation other than judicial review, ranging from departmentalism to explicitly removing judicial review from the court's purview. As many of these works have recognized, such skepticism is not new, but has a strong historical tradition. What has not often been noted, however, is that differing conceptions of judicial review—even opposition to judicial oversight of legislative actions—existed nearly from the moment that Marbury v. Madison was decided. This article examines some of these divergent opinions on judicial review in the Early Republic by studying how it was perceived by the Old Republicans, the conservative faction of the Virginia Jeffersonians.

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Articles
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Law and History Review , Volume 35 , Issue 2 , May 2017 , pp. 351 - 390
Copyright
Copyright © the American Society for Legal History, Inc. 2017 

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Footnotes

He thanks Drs. Jerold Waltman and David Bridge for their insight and encouragement over the course of working on this manuscript, Drs. Curt Nichols and Justin Dyer for the opportunity to present an earlier version of this article, and the anonymous referees for their helpful comments and suggestions.

References

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57. See Virginia Constitution of 1776.

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90. Roane, “Hampden IV,” in John Marshall's Defense, 153. Roane did not reject implied powers out of hand, accepting those that are “fairly incident” and restricted by necessity. See “Hampden II,” 117–24.

91. Roane, “Hampden II,” in John Marshall's Defense, 116–17.

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102. Cohens, 414–15; Hobson, The Great Chief Justice, 131.

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111. Sheldon and Hill, Liberal Republicanism, 171. Sheldon and Hill note that it is unclear where Taylor received this information about the debates, as Madison's journal would not be published until after Taylor's death, and William Jackson's journal was largely devoid of debate content. The most likely culprit is Robert Yates’ journal which was published in 1821, the same year as Tyranny Unmasked, although Yates’ journal is incomplete because he left the Convention early.

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114. Taylor, Tyranny, 150; and Taylor, New Views, 138.

115. Taylor, Tyranny, 204.

116. Taylor, New Views, 128–29.

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