Edwin S. Corwin


In tracing the establishment of judicial review subsequently to the inauguration of the national government it will be important to bear in mind that there are two distinct kinds of judicial review, namely, federal judicial review, or the power of the federal courts to review acts of the State legislatures under the United States Constitution, and Judicial review proper; or the power of the courts to pass upon the constitutionality of acts of the coordinate legislatures. That the Judiciary Act of 1789 contemplated, in the mind of its author, Ellsworth, the exercise of the power of review by the national courts of acts of Congress can be scarcely doubted, but how far others accepted this view of the matter it is impossible even to conjecture, so entirely silent upon this point are the brief records of the debate. Perhaps the first congressional reference to such a power occurs in the House debate of February 21st, 1791, upon the bill to establish a national bank. Jackson of Georgia offered the argument that Congress ought not to adopt a measure which ran the risk being "defeated by the judiciary of the United States, who might adjudge it to be contrary to the Constitution and therefore void.'" :an objection which however Boudinot of New Jersey and Smith of South Carolina were prompt to convert into an argument for the measure. Said the former, far from converting this right in the judiciary "it was his boast and his confidence. It led him to greater decision on all subjects of a constitutional nature when he reflected that if, from inattention, want of precision or any other defect, he should do wrong, that there was a power in the government which could constitutionally prevent the operation of such a measure from affecting his constituents. There can be, I think, not the least doubt that a steadily developing feeling of unworthiness on the part of legislatures and a growing disposition to abdicate all final responsibility to the judiciary has been at once a cause and a consequence of the advancing power of the courts among us. It is therefore rather suggestive to come upon this point of view so early a date.