Judicial Review, Party Politics, and Slavery Before Marbury

Before one can assess these men's conceptions of judicial review, one must first understand the broader legal context that these men worked and were educated in. The scholarly literature has firmly demonstrated that judicial review was regularly employed in the United States both at the federal level and in the states before Marbury was decided in 1803. In the Anglo-American legal tradition, judicial review may be traced back to the famous Dr. Bonham's case of 1610, in which Sir Edward Coke declared that acts of Parliament could be declared void when they conflicted with the common law.Footnote ⁵ Although scholars have debated about what exactly Coke meant, following this case, judicial review was developed primarily by judges, and was not particularly constitution driven.Footnote ⁶ Apart from being a formal legal procedure, Alison LaCroix has pointed out that throughout the seventeenth and eighteenth centuries the English Privy Council often acted as a court of last review for both judicial and legislative actions, particularly on colonial matters.Footnote ⁷

Considering this larger English context, it is unsurprising that judicial review was exercised at different levels of the American government prior to Marbury. Prakash and Yoo found that at least seven state courts invalidated legislation on the basis of fundamental or higher law in the pre-Constitutional period.Footnote ⁸ References to the judiciary's power to rule on a law's constitutionality by delegates in the Philadelphia Convention give further indication that judicial review was widely practiced.Footnote ⁹ Between ratification and Marbury, William Michael Treanor noted there were at least “thirty-one cases in which a statute was invalidated and seven more in which, although the statute was upheld, one judge concluded that the statute was unconstitutional.”Footnote ¹⁰ Even the Supreme Court exercised the doctrine in three 1790s cases: Hylton v. United States (1796), Calder v. Bull (1798), and Ware v. Hylton (1796).Footnote ¹¹ However, constitutional resistance to judicial decisions also existed prior to Marbury, as the Eleventh Amendment was passed specifically in response to the Court's nationalist ruling in Chisholm v. Georgia (1793), with the states as the driving force for its adoption.Footnote ¹²

Of all the states, judicial review was particularly well developed in Virginia. The Virginia Court of Appeals began employing the practice in the 1782 case Commonwealth v. Caton, in which Judge George Wythe—who had taught Jefferson, Marshall, and Roane—asserted that it was the judge's role to uphold the constitution and tell the legislature “here is the limit of your authority; and, hither, shall you go, but no further.”Footnote ¹³ Edmund Pendleton—a mentor to Roane and Taylor—added to this doctrine six years later in his “Respectful Remonstrance,” declaring that when the constitution and the law conflict “the former must control the operation of the latter.”Footnote ¹⁴ The 1793 case Kamper v. Hawkins built upon this foundation with two of Virginia's most prominent judges, Roane and St. George Tucker, showing strong support for judicial review. The former boldly stated it was the judiciary's responsibility “to refuse to execute a law expressly repugnant to the Constitution” and expanded the court's power by insisting it could also strike down laws “in opposition to the fundamental principles [of the Constitution],” a sentiment Tucker largely agreed with. Roane also added a popular element to the court's role, determining that judges worked “on behalf of the people” when they upheld the Constitution against regularly enacted laws.Footnote ¹⁵ From his perch on the Court of Appeals, Roane upheld this interpretation of judicial review in Virginia into the Jeffersonian era, specifically in Jones v. Commonwealth (1799) and Currie's Administrators v. Mutual Assurance Society (1809).Footnote ¹⁶

Moving to political parties, by the time Jefferson and Marshall came to head the executive and judicial branches, respectively, parties had come to be accepted as part of American political life, and the Old Republicans were a key faction in the newly empowered Jeffersonian coalition. Although the Jeffersonian party was organized during Washington's first term, the distinguishing moment for the Old Republicans came in 1798 with the Kentucky and Virginia Resolutions—written by Jefferson and Madison, respectively—and Madison's Report of 1800. These resolutions will be discussed more below, what I will say here is simply that these resolutions’ strong support of states’ rights in relation to the federal government became “the basic catechism of the Old Republicans,”Footnote ¹⁷ solidifying the Old Republicans as emphasizing localism and states’ rights as their constitutional philosophy's primary foci. In additional to this localism, their general opposition to centralized power, which Lance Banning connected to the English Whig tradition that was heavily influential in the Revolutionary period and among the Antifederalists, must be acknowledged.Footnote ¹⁸ The emphasis on states’ rights, opposition to a strong central government, and strict construction of the Constitution were continuing features of the faction through to the 1820s, making them a “missing link…between the Antifederalists of 1788 and the states’ rights Southerners of the Jacksonian era.”Footnote ¹⁹

This devotion to particular political principles becomes abundantly clear from the Old Republicans’ sometimes virulent opposition to the nationalist tendencies of the Jefferson and Madison administrations. Their opposition was strong enough that they almost tore the coalition apart, rebelling against party leadership in pushing James Monroe to run for president in 1808 against Jefferson's hand-picked successor Madison.Footnote ²⁰ Stephen Skowronek has gone so far as to say that Randolph, along with Marshall, “presented the main sources of resistance” to Jefferson's use of power.Footnote ²¹ Despite these conflicts, it is important to emphasize that they remained within the party; although there was some effort—particularly by Randolph—to form a new party, the faction as a whole was unwilling to leave the Jeffersonian coalition. Taylor expressed these sentiments in 1807, stating that he was unwilling to become “a party man against the administration.”Footnote ²² Staying in the party led to basic partisan opposition to the Federalist-controlled Marshall Court, although the effect of this partisan animosity on their various conceptions of judicial review appears to be limited, as will be discussed below.

As part of this discussion of states’ rights and a political philosophy of decentralization, the academic literature on slavery in the early national period must also be taken into consideration to assess if the peculiar institution affected how these men thought and acted in relation to judicial review, particularly as each of the men studied were slave owners. Recent research has established a compelling narrative of socioeconomic interests related to slavery having a deep impact on the Constitution and American political society generally, even to the point of making the antebellum Constitution a “proslavery” document.Footnote ²³ Such claims have even led some to the question of what to do when such moral injustices are enshrined into central governing documents, creating problems of “constitutional evil.”Footnote ²⁴ Thus it becomes apparent that the basic constitutional structure was one in which slavery—although not directly mentioned in the Constitution—was present nonetheless. Without the infamous three-fifths clause, Jefferson would not have been elected president in 1800, as the clause gave Southern slaveholding states what George William Van Cleve termed a “premium” in the Electoral College.Footnote ²⁵ Therefore, the ascension of the Jeffersonians—and by extension the Old Republicans—to national power was aided by the existence of slavery and the constitutional compromise that acceded to it. As Padraig Riley has pointed out, such concessions to slavery permeated the Jeffersonian coalition because of its Southern leadership, leaving Northern Jeffersonians in the uneasy position of protecting slavery as part of the larger ideological goal of pursuing Jeffersonian democracy.Footnote ²⁶

On top of these political and constitutional issues were the economic and social effects of slavery. As Van Cleve has noted, Northern abolition only occurred in states where slavery was marginal economically, and progressed in various states as abolition's socioeconomic costs fell and it became more politically palatable, and as costs remained high in the South, abolition was politically impossible.Footnote ²⁷ Furthermore, slavery's existence provided a sign of social status, making slavery a key element in the stratification of Southern society.Footnote ²⁸ These socioeconomic effects bled into the law, as Virginia's legal codes during the Jeffersonian era supported the peculiar institution; barring abolitionists from sitting on juries in freedom cases, prohibiting abolitionist assistance to slaves seeking freedom through legal processes, and enforcing penalties on unsuccessful freedom suits, all while restricting what had been some of the most liberal manumission laws in the country for their time.Footnote ²⁹

Although slavery had strong economic, legal, social, and political implications, some nascent antislavery trends should not be discounted, particularly in the Virginia judiciary. The slave manumission case Pleasants v. Pleasants (1799)—presided over by the aforementioned George Wythe—found in favor of the slaves, a result that was upheld in the Court of Appeals, including by Roane, despite his disagreement with Wythe's reasoning. The same scenario played out again in Charles v. Hunnicutt (1803), with Wythe finding in favor of the slaves and Roane upholding the ruling on appeal.Footnote ³⁰ Finally, Hudgins v. Wright (1806) saw Wythe “single-handedly tr[y] to abolish slavery through judicial interpretation,” and although not completely successful, his ruling for the slaves was again upheld by the Court of Appeals, including by Roane, who once more disagreed with the reasoning.Footnote ³¹ What should be gleaned from these cases is that there was some movement against slavery in Virginia's courts, and this must be remembered along with the broader context of slavery that Marshall and the Jeffersonians lived in.

With this background laid out, it becomes possible to examine the various conceptions of judicial review, and evaluate if the existing narratives of the Old Republicans being devoted partisans and states’ rightists correlating with strong support for the protection and expansion of slavery account for the differing conceptions of judicial review observable among the Old Republicans, their party leaders, and John Marshall. In studying their different views—first at the federal level and then between the federal government and the states—one will find that the narratives set out by the literature largely do not account for the differences in opinion. I will then attempt to show what does explain these differences, and discuss how the existing literature provides partial descriptions, but cannot account for each individual in their totality.

Judicial Review at the Federal Level

Although on opposing sides politically, Marshall and the Jeffersonian leadership had a certain level of agreement on judicial review, particularly on whether judicial review implied judicial supremacy. Marshall, Jefferson, and Madison all agreed it did not, and adhered to variations of departmentalist theory, wherein each branch of government could decide the constitutionality of actions within its own sphere. Marshall adopted this view in Marbury, in which he did not assert the Court's predominance, merely its ability to review and overturn federal legislation when necessary, leaving open the possibility of responses from the legislative and executive branches.Footnote ³² As Larry Kramer notes, however, Marshall's position was relatively unique among Federalists, as they had developed a theory more akin to judicial supremacy.Footnote ³³

Among the Jeffersonians, although Jefferson bemoaned Marshall's tendency to go beyond the case at hand to illustrate an abstract legal principle—Marbury being the prime exampleFootnote ³⁴ —he still recognized the necessity for some kind of judicial review, seeing it as a strong method to protect rights—both for individuals and for the states—even telling Madison that he would have liked the Constitution to include an explicit provision providing a judicial veto on legislation.Footnote ³⁵ He also contended that judicial review solidified judicial independence, ensuring that the judiciary was not a tool of the executive branch.Footnote ³⁶ This emphasis on judicial independence helps explain Jefferson's relatively stringent departmentalism. In an 1815 letter, Jefferson concluded that in matters pertaining only to the operations or under the jurisdiction of a particular branch, it was up to that branch to decide constitutionality “for themselves…equally without appeal or control from its co-ordinate branches.”Footnote ³⁷ In a later letter to Roane, he continued this point, informing the judge that he went “further than you [Roane] do,” in that “each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action.”Footnote ³⁸ At the same time, Jefferson was concerned about judicial independence going too far and depriving the other branches of checks on the judiciary. Citing Justice Samuel Chase's failed impeachment, Jefferson saw no way to counter the Court's power other than to allow the other branches to also exercise review of constitutional actions.Footnote ³⁹ In 1804, Jefferson used recent history to detail how this coordinate review would work in practice, explaining that judges had the right to uphold the Sedition Act in 1798, but that the executive could also choose not enforce the act if he thought that it was unconstitutional. Thus, Jeffersonian departmentalism was an extension of checks and balances, as the “co-ordinate branches should be checks on each other,” preventing one branch from establishing a despotic supremacy over the other two.Footnote ⁴⁰

Although similar to Marshall's conception, Jefferson's coordinate review was different enough that Robert Clinton distinguished between the two by dubbing the latter “arbitrary review” and the former “functional review;” defining Marshall's functional review as giving final authority in constitutional questions to whichever branch the case was concerned with. Thus Marbury was rightly decided by the judiciary as it dealt with judicial authority. Questions related to legislative or executive issues would naturally be deferred to those branches to be resolved.Footnote ⁴¹ This view appears to have also been accepted by Madison, who wrote that he believed that the judiciary was supreme “on questions occurring in the course of its functions.”Footnote ⁴² Similarly, he noted that although “in the ordinary course of government, …the exposition of the laws and constitution devolves upon the judicial,” he rejected that the judiciary alone could “determine the limits of the constitutional division of power between the branches of government.”Footnote ⁴³

However, whereas Jefferson, Madison, and Marshall largely agreed on a departmental conception, the Old Republicans had markedly differing views, even among each other. Randolph and Taylor seemed to draw inspiration from the Anti-Federalist writer “Brutus” who contended that the Court's independence from the elected branches made it virtually uncheckable, removing it from the purview “of the people, of the legislature, and of every power under heaven.” When combined with the Constitution's high standard for impeachments, Brutus saw the Court as possessing a constitutional supremacy that “neither people, nor state legislatures, nor the general legislature” would be able to reverse, making it a uniquely dangerous and undemocratic institution, a sentiment shared by Randolph and Taylor.Footnote ⁴⁴

Randolph did not seem to even consider coordinate review as a possibility, deeming judicial review as equivalent to judicial supremacy. To Randolph, the thought of allowing the Constitution to be interpreted and defined solely by an unelected Supreme Court was foolish and dangerous, although rather than seeking refuge in coordinate review as his party leaders did, Randolph assumed that there must be a final arbiter on constitutional questions, but determined it could not be the Court, declaring in 1801 that “[t]he decision of a Constitutional question must rest somewhere. Shall it be confided to men immediately responsible to the people, or to those who are irresponsible?”Footnote ⁴⁵ The Court's unaccountability made it unsuitable to be the guardian of constitutional liberties, as the true check on government was exercised by the people through elections. Judicial review removed decisions affecting the Constitution from the hands of the people who had ratified and instituted it in the first place.Footnote ⁴⁶

In the place of judicial review, Randolph advocated a type of legislative supremacy, even proposing a constitutional amendment providing for the removal of Supreme Court justices by a majority vote of Congress.Footnote ⁴⁷ When that failed, Randolph took a more proactive approach and led the effort to impeach Justice Samuel Chase, who was accused of criminal behavior and procedural mistakes. A successful impeachment would have established de facto legislative oversight of judicial actions. Interestingly, Marshall believed that Congress had such power without impeachment, telling Chase before the trial that Congress could “reverse those legal opinions deemed unsound.”Footnote ⁴⁸ When Chase was acquitted, Randolph lost his credibility among his Jeffersonian brethren in Congress, discrediting his views on judicial review in the process.Footnote ⁴⁹

Although Randolph bogged himself down in legislative procedure and oratorical grandstanding, Taylor took up his pen and objected to the Supreme Court in his public writings. It is important to distinguish Taylor from Randolph, however, for although both rejected judicial review, Taylor did not embrace legislative supremacy as readily as Randolph. Rather, he had a departmentalist conception of government that was perhaps even more extreme than Jefferson's, going so far as insisting that the two houses of Congress “are each an independent tribunal to judge of its own constitutional powers.”Footnote ⁵⁰ Unlike the other departmentalists, however, Taylor did not accept the judiciary's power to overturn laws as part of its constitutional authority, seeing it as a usurpation of the people's sovereign power as delegated to the legislature. In practice, this led Taylor's departmentalism to lean toward the legislature, including some indication that he saw Congress as the final authority on constitutional questions, as it is only Congress's silence in refusing to respond to a Court decision that gives “recognition and a confirmation of the court's opinion.”Footnote ⁵¹ Thus Taylor agreed with Randolph and Brutus that the representative branches should oversee constitutional issues and that the judiciary was too independent of the people to be trusted with such a delicate grant of power.

Taylor added another layer to his protests by bringing in the question of the executive. Taking a position opposite Jefferson, who believed that judicial independence lessened executive influence, Taylor argued that because the justices’ lifetime appointments came from the executive, they could become tools of the executive to justify any despotic law he chose. When combined with the president's commander-in-chief powers, it would be a recipe for tyranny, as “he who appoints judges, has what law he pleases; and…he who appoints commanders, determines the conduct of fleets and armies.”Footnote ⁵² Without elections to make them dependent on the people, Taylor saw the courts as dependent on those who gave them power, making them, in Eugene Mudge's words, “the tool or mouthpiece of the most powerful faction in the country.”Footnote ⁵³ Although if this were the case, over time, the Jeffersonians would have dominated the Court, and it is strange that Taylor never urged his friend, President James Monroe, to appoint federal judges who shared their viewpoint.Footnote ⁵⁴ Garrett Ward Sheldon and C. William Hill, Jr. comment that this worry about executive power acting through the judiciary partially explains Taylor's preference for decentralized states, as many state constitutions of the time—including Virginia's—subordinated the governor to the legislature, who were in turn subordinated to the people.Footnote ⁵⁵ Taylor's predilection for the way that the states tended to treat the judiciary is further emphasized in that although he rejected judicial review on the federal level, he assented to it on the state level, citing it as a defense against unconstitutional state laws.Footnote ⁵⁶ This support for judicial review at the state level could be explained by the fact that states such as Virginia gave the legislature more control of the judiciary, keeping them indirectly tied to the people.Footnote ⁵⁷

Taylor insisted that a judiciary able to invalidate legislation enacted by the people's representatives undermines popular government and makes them completely independent of the people. Like Randolph, Taylor complained that this situation left the Supreme Court with complete power over the Constitution and the law “without responsibility to the national sovereignty,” a notion that “is an unprincipled and novel anomaly, unknown to any political theory and fitted to become an instrument of usurpation.”Footnote ⁵⁸ To restore sovereignty, however, Taylor does not look exclusively to Congress, but also to the states, which, as aforementioned, often made the governor subject to legislative authority. Taylor contended that the states took greater care in separating executive and judicial power, allowing the people to promote their will through their representatives.Footnote ⁵⁹ The issue of states as potential counterparts to federal judicial power will be addressed subsequently.

On the opposite end of the spectrum, Roane—whom Jefferson would have appointed chief justice had John Adams not appointed Marshall firstFootnote ⁶⁰ —saw the Supreme Court as the final arbiter for the federal government, diverging from the coordinate review of his party leaders and the emphasis on legislative power upheld by his ideological fellow-travelers. Stating “that the last resort by the judiciary, is in relation to the authority of the other departments of government,”Footnote ⁶¹ Roane asserted that the judiciary was the final voice for constitutional decisions among different branches of the same government, expressing a level of judicial supremacy that his compatriots could not abide. Roane was not alone in this opinion among Virginia judiciary, as St. George Tucker also emphasized that judicial review over the other branches protected the judiciary institutionally and secured individual rights from legislative and executive tyranny.Footnote ⁶²

Now that these divergent conceptions of judicial review among the three branches of government have been discussed, it can been seen that each individual generally falls into one of three categories: judicial supremacy, departmentalism, or rejection of judicial review, as illustrated in Figure 1.

Figure 1. Review of constitutional questions within the federal government.

The question becomes: what explains these deviations among factional allies. Moving from Roane's judicial supremacy through the departmentalism of Jefferson, Madison, and Marshall, and ending with the rejection of judicial review by Randolph and Taylor, I will attempt to explain how they came to these differences in opinion and examine if the previously discussed literature on Anglo-American jurisprudence, party politics, states’ rights, and slavery can provide insight into these nuances of opinion.

Beginning with Roane, it seems that his idea of judicial review was drawn not only from his own experiences as a state judge, but also from the legal history he was acquainted with. As mentioned before, judicial review had long been practiced in Virginia, and the English jurisdictional tradition continued to be influential into the early national period. Therefore, it should be no surprise that a judge understood judicial review as not only uncontroversial, but as a necessary component of constitutional government. Roane's support for judicial review is, therefore, easily traceable to historical practice and precedent, as this was the norm in the legal milieu in which he worked and was educated.

Additionally, Roane's support for judicial review as a prominent power among the three branches of the federal government does not invoke the narratives either of politics, states’ rights, or slavery. Given the political situation in the judiciary in the early nineteenth century, the assumption would be that staunch Jeffersonians would oppose judicial review because Federalists effectively controlled the federal courts. Similarly, given the lack of judicial review being explicitly mentioned in the Constitution, one might be led to think judicial review's implied nature would force strict constructionists such as Roane to deny its existence. Instead, he supported judicial review as a routine legal procedure and a necessary part of the Constitution's institutional framework, seeing it as inherent in normal judicial power. States’ rights also do not seem to factor in at this particular point, as these opinions concerned judicial review at the federal level, and did not address federal–state conflicts. Similarly, supporting judicial review as a function of the national courts for national issues does not indicate a preference for or against slavery, for whereas judicial review could be exercised to protect slavery—as Dred Scott v. Sanford aptly demonstrated—it could also be used against slavery, as we saw with Pleasants, Charles, and Hudgins. These two issues will become more important as I review Roane's views on judicial review between the states and federal government, but at this point, their effect is minimal, and Roane's interpretation is far more understandable when viewed through the lens of legal history and context.

This legal context also partially explains the departmentalist views expressed by Marshall, Jefferson, and Madison, as they were educated in the same political and legal climate and largely accepted the basic nature of the judiciary as including a power for judicial review. However, this does not explain all of it, for if it did, one could presume that they would come to the same conclusions as Roane. In accounting for the differences, however, it is apparent that whereas Marshall's conclusions agree with Jefferson's and Madison's, the explanations and motivations for this agreement differ considerably. With Marshall, the political situation is highly important, and it must be remembered that prior to becoming chief justice, he had been a successful Federalist politician. He was, therefore, an experienced political operator who would have fully understood the delicate position he was in having been nominated and confirmed by the lame duck John Adams and Federalist Congress.Footnote ⁶³ Therefore, when Marbury came before the Supreme Court, Marshall would have been under immense political pressure to accommodate the newly empowered Jeffersonians. These political considerations almost undoubtedly led to Marshall's aim to present “the least controversial case for judicial review.”Footnote ⁶⁴ If one looks at Marbury’s companion case Stuart v. Laird—which concerned whether the Jeffersonians’ repeal of the Judiciary Act of 1801 was constitutional—it becomes apparent that the Court played a political game. Knowing that the Jeffersonians cared more about Stuart than Marbury, the Court took a short term political loss in upholding the repeal while exercising their nascent judicial review powers to strike down part of another law that the Jeffersonians would not object to. This allowed the Court to execute “a masterpiece of political strategy,” insisting it had such authority without facing political retribution.Footnote ⁶⁵

With these facts in mind, it is quite possible that Marshall came to his departmentalist view simply out of a recognition that judicial supremacy could not be enforced in a political climate of Jeffersonian dominance. Marshall understood the truth in Hamilton's observation from Federalist 78 that the judiciary has “neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”Footnote ⁶⁶ With an executive headed by Jefferson, Marshall must have known that for the Court to survive as a coequal branch, he needed to assert judicial power while maintaining peace with other branches, which could be done by not claiming final interpretive authority and theoretically allowing them constitutional review powers. Marshall appears to have seen departmentalism as the best way to resolve inter-branch constitutional disagreements, because the alternative would ultimately involve force, or one branch trying to control another. This becomes clear in his comments before the Chase trial, that Congress had a type of “appellate jurisdiction” to reverse court decisions,Footnote ⁶⁷ indicating coordinate review as allowing for deliberation and consensual decision making over constitutional issues.

As with Roane, the issues of states’ rights and slavery do not appear to have had an impact on Marshall's conception of judicial review at the federal level. His views seem to have been driven more by legal context and the political situation he found himself in, leading him to accept judicial review but reject judicial supremacy in order to avoid retaliation from the Jeffersonian-controlled branches. For Marshall, departmentalism was born out of political prudence and strategy; had the Federalists retained power, it is possible that Marshall would have supported judicial supremacy in line with the developing party doctrine. But given the realities he faced, it is unsurprising that Marshall turned to departmentalism for how judicial review should operate within the federal government.

The legal and political context may also help explain Jefferson and Madison's coordinate review, as both were aware of the Anglo-American jurisdictional tradition and the relevant practice of judicial review, with Jefferson even working as a lawyer. Politics also played a role, as the two party leaders clearly realized that allowing the judiciary sole review of constitutional issues would surrender constitutional interpretation over to the Federalists, something they clearly could not allow, particularly as a central disagreement between the Federalists and Jeffersonians was over proper constitutional construction.

Despite this fear of a Federalist judiciary, it is important to point out that neither Jefferson nor Madison rejected the Court's power to interpret the Constitution. Instead, Jefferson insisted that the Court's selection method should be changed, with an amendment that “keeping the judges independent of the Executive, would not leave them so of the nation,”Footnote ⁶⁸ showing that his response to a politicized judiciary was to tie it back to the people just like the other two branches. This is similar to the concepts sketched out by Jefferson and Madison in the Kentucky-Virginia Resolutions. Although those resolutions argued that the people as organized into states maintained ultimate constitutional authority, the basic principle of popular constitutionalism expressed that this could be applied to the elected branches of the federal government, as they too represent the will of the sovereign people. Therefore, one should not read too much into the political explanation for Jefferson and Madison, for although the political situation may have made their departmentalism more explicit, it was their popular constitutionalism that brought them to reject the notion that any single government body maintained an interpretive monopoly over the Constitution.

It is possible, however, that states’ rights and slavery provide some explanation for why Jefferson and Madison supported departmentalism, mainly in that departmentalism allows legislative review and the states had representation in Congress via the Senate, as well as slave states having more representation in the House via the three-fifths clause. Therefore, it would be in the interest of the states—particularly slave states—to give Congress an interpretive voice over the Constitution. At the same time, however, had Jefferson's and Madison's theories of judicial review been driven only by considerations of states’ rights and supporting slavery, there would likely have been an emphasis more akin to Randolph's legislative supremacy rather than simply coordinate review. Because of the equality entailed in departmentalism, it seems unlikely that Jefferson's and Madison's understandings of states’ rights or slavery played much of a role in developing their theories of judicial review at the federal level. Neither the states nor defenders of slavery gained much from a departmentalist situation, the former having their interests represented in only one sixth of the government, and the latter—who perhaps held some extra representative edge in the House—still having to contend with delegations from free states, as well as with the review powers of the executive and judiciary, whose attitudes toward slavery could vary. Although in hindsight it is apparent that the slave states did have an advantage in the antebellum period, had these issues been major drivers of Jefferson's and Madison's opinions at this level, they would likely have adopted interpretational conceptions that would aid states’ rights and slavery more than departmentalism. Although this calculation changes when examining the implications of federalism with judicial review, at the national level it does not seem to have been a primary influence.

When one considers the rejection of judicial review by Randolph and Taylor, however, the argument that this occurred to defend states’ rights and slavery bears some weight, given their institutional alternative. If the legislature were vested with the final say in constitutional interpretation, the states would have a collective interest in that they would be represented equally in half of the decision-making body. Similarly, the enhanced representation of slave states from the three-fifths clause would also tip the scales slightly toward slave states, giving them more power in interpretive decisions. Of course, some drawbacks remain, particularly for slavery defenders, as their advantage in the House could—and was—offset by population increases in free states and the addition of new free states, which also greatly affected the Senate. Therefore, even legislative supremacy could not provide complete protection for slavery in the states.

Looking at an individual level, however, it is difficult to say that slavery was a principal motivator behind Randolph's and Taylor's rejections of judicial review. Although both were slave owners, they largely saw slavery as an evil that must eventually die. Randolph is particularly complex, as one of his biographers, William Cabell Bruce, insists “there is little room to doubt that, if he could have freed all the negro slaves in Virginia under proper conditions he would have freed them;”Footnote ⁶⁹ while another, Russel Kirk, described Randolph as the bridge between the Jeffersonian and Calhounian views on slavery, acting as “an index to the alteration of the southern mind during those years.” On the whole, Randolph appears more antagonistic than friendly toward slavery. He consistently opposed the slave trade and supported the American Colonization Society as a way to abolish slavery without disrupting what he saw as the social order. Although this is not to say that he was content with the social order of Virginia slave society; Randolph wrote in his 1821 will that “the obstacles thrown in my way by the laws of the land, have prevented my emancipating them in my lifetime, which it is my full intention to do.” Interestingly, Randolph opposed immediate abolition more out of a concern for his slaves than for the institution, as “[t]o have released his negroes immediately and left them destitute in hostile Virginia…would hardly have been a kindness.” On a personal level, Randolph freed his slaves in his will, giving them land he had purchased for them in Ohio, and referred to them as his “best and most faithful friends.” This does not absolve Randolph of his complicity with the evils of slavery and the horrendous racial views of his time, such as his consistent belief that the races could not live together and that slavery was a natural, if detestable, part of the social order. The latter opinion even led Randolph to view Northern abolitionists with suspicion and contempt for trying to effect radical change on Southern society, placing him in a position of defending slavery. Similarly, as slavery was almost always politically tied to, and Randolph always joined the side of, states’ rights, he was often positioned to defend slavery and used the peculiar institution to induce Southerners to join his states’ rights cause, not the other way around.Footnote ⁷⁰ Thus Randolph's purported public support for slavery was a political calculation to support states’ rights, not a defense of the institution itself. That Randolph could use slavery so easily in his defense of strict construction and states’ rights rather lends credence to the suggestion that the Constitution as originally constructed protected slavery; however, in terms of Randolph's conception of judicial review, it is apparent that slavery did not push Randolph to embrace legislative supremacy, as slavery's defense was not even a goal of his political program, but only a means to achieve the end of protecting states’ rights.

Taylor is also philosophically confusing on slavery, as he condemned it as evil while defending it as consistent with natural rights.Footnote ⁷¹ Despite this confusion, it is difficult to see slavery as the primary motivator behind Taylor's condemnation of judicial review. As with Randolph, his slavery views are intertwined with his defense of states’ rights, and do not touch on how he viewed judicial review at the federal level. What better explains Taylor's position are his views on sovereignty, which he considered indistinguishable from self-government in that both reside in the people and not in the government.Footnote ⁷² Specifically, sovereignty rested in the people as collected into states, and was generally defined as “the people's constituent power to form a government.”Footnote ⁷³ Under this definition, Taylor's concern with a judiciary independent of the people becomes more evident, as such a body could not be trusted to interpret the Constitution or strike down enactments by the representatives of the people's sovereign will.

Thus Taylor opposed judicial review on philosophical principle, clearly subscribing to the Whig and Anti-Federalist intellectual tradition that prioritized legislative power and remained suspicious of executive and judicial authority.Footnote ⁷⁴ This ideological explanation may also apply to Randolph, who despite not sharing Taylor's theoretical commitments to natural rights and departmentalism, retained a Whiggish sensibility in emphasizing legislative predominance. However, there may be a more personal political reason for Randolph to prefer legislative supremacy because, as a leader in the House, his own power would have been augmented under such a system. Nonetheless, a firm belief in congressional authority and an understanding of popular sovereignty derived from direct representation convinced Taylor and Randolph that judicial review—despite its wide practice at the state level—was an illegitimate exercise of power at the federal level, insisting that Congress was to be the ultimate interpreter of the Constitution in conflicts among the three branches of the federal government.

Through these analyses, one sees that legal and political context had the most influence on these men in shaping their ideas of judicial review at the national level, with Roane, Jefferson, Madison, and Marshall all at least accepting judicial review as a proper power based on past legal practice. Jefferson, Madison, and Marshall were additionally influenced by the political situation, leading them to adopt forms of departmentalism. At this level, the narrative of a constitutional politics of slavery seems to have had little impact. Although perhaps more explanatory for Randolph and Taylor, it does not encapsulate the entire story, as they were far more concerned with popular control than with socioeconomic concerns over slavery; worries that overlap significantly with Madison and Jefferson's departmentalism. Therefore on the federal level, principles of popular constitutionalism, legal history, and political context provide the best explanations for the various conceptions of judicial review found among the individuals studied. However, that calculation changes when one looks at judicial review between the federal government and the states.

Judicial Review Between the States and the Federal Government

Considering their philosophical commitments, the relationship between the states and the national government was in some ways the primary focus of the Old Republicans. In discussing the extent of federal judicial review in the states, I am also addressing the issue of federal supremacy, as the individuals examined considered the two so integrally connected as to be nearly synonymous. Interestingly, both the nationalist and states’ rightist conceptions of these questions can find support from James Madison. The nationalist view of federal supremacy was a key component of Madison's initial plans at the Constitutional Convention, specifically his proposed negative on state laws that would have given Congress the power “to legislate in all cases to which the separate States are incompetent,” and was a provision Madison considered “essential.”Footnote ⁷⁵ From this principle allowing congressional oversight of state laws, it logically followed that the federal courts would be able to override state court rulings. Madison even explicitly referenced the ability of federal courts to nullify state laws, an assertion he reiterated in Federalist 39 by noting that controversies between jurisdictions—whether state or federal—would have to be decided by the impartial tribunal “established under the general government.”Footnote ⁷⁶ Although he did not directly discuss the relationship between state and federal courts, it is not a stretch to infer that the different court systems were included.

The states’ rights side of Madison can also be glimpsed during this period, with his assertion in Federalist 45 that the powers of the federal government would be “few and defined” as opposed to state power, which remained “numerous and indefinite,”Footnote ⁷⁷ as well as with his proposal of the Tenth Amendment in the First Congress. However, Madison's attachment to the states received its fullest treatment in 1798 with the Kentucky and Virginia Resolutions and the Report of 1800. The fundamental contribution of these works was the compact theory of union, under which the states were parties to the constitutional contract. This meant that the federal government could be restricted by the states who had created it, and it also meant that the states “have the right, and are duty bound, to interpose for arresting the progress of evil” when the federal government goes beyond its enumerated powers.Footnote ⁷⁸ Thus the states would be able to review the constitutionality of federal legislation and nullify federal laws that they deemed unconstitutional, making the system of checks and balances vertical between the states and federal government as well as horizontal among the three branches. This was made possible under the rationale that the states represented the people “in their highest sovereign capacity” when gathered into the ratification conventions, and thereby were the people.Footnote ⁷⁹ State nullification, therefore, was a reflection of popular constitutionalism, with the people enacting their sovereign will to restrain the federal government that they had collectively created as people of the several states. As Christian Fritz has pointed out, such views necessarily undermined the idea that the Supreme Court would be the exclusive interpreter of the Constitution, as such an interpretive monopoly would deprive the people of their sovereign power over the government that they had created.Footnote ⁸⁰

This complex conception of the relationship among the people, the states, and the federal government could be viewed as an extension of Hamilton's point in Federalist 78 in which he said that the courts are “designed to be an intermediary body between the people and legislature” as Congress could not be trusted to judge its own powers.Footnote ⁸¹ In this case, the states would become the intermediary body between the federal government and the people as the former—including the courts—could not be trusted to judge its own powers. Madison makes this point in the Report, pointing out that the judiciary, as part of the federal government, may agree with its fellow branches’ use of unconstitutional power and “subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution, which all were instituted to preserve.” However, Madison also turns to the compact theory to make a more general point about the federal government overseeing state authority. In a point similar to Roane's, Madison contended that the Supreme Court worked better as an arbiter for issues among the three federal branches, not for the states. Because the states, as parties to the constitutional contract, delegated authority to the federal government, the federal judiciary derives its powers from the collected states and cannot “annul the authority delegating it,”Footnote ⁸² because to do so would make the states subordinate to the federal government that they had created, and by extension would subordinate the sovereign people to their own creation.

However, the issue of federal versus state jurisdiction came to a head not in the public writings of the time, but in judicial reactions to the Marshall Court's decisions. The first shot was fired with Fairfax Devisee v. Hunter's Lessee (1813), when the Supreme Court—minus Marshall who recused himself—struck down a Virginia law on the grounds that it interfered with a federal treaty.Footnote ⁸³ Roane responded the next year with his opinion in Hunter v. Martin, in which he condemned Section Twenty-Five of the Judiciary Act of 1789 as unconstitutional for granting appellate jurisdiction to the Supreme Court over state court decisions. Noting the conspicuous absence of any reference to state courts, Roane argued that by referring only to federal courts, the Constitution kept state and federal judicial systems separate, making appellate jurisdiction over state courts unconstitutional. Roane also cited the 1799 Pennsylvania case Commonwealth v. Corbett, which denied defendants the ability to move their cases to federal court, as precedent for the lack of federal appellate authority over state courts.Footnote ⁸⁴ He further asserted that Article VI's language about state judges vowing to uphold the Constitution implied that state judiciaries retained a concurrent responsibility over constitutional questions.Footnote ⁸⁵ The Supreme Court responded in Martin v. Hunter's Lessee (1816) in which Justice Joseph Story—who authored the original Fairfax decision—reasserted the Court's appellate jurisdiction. Story contended that if Congress did not establish inferior federal courts, then the existence of appellate power without a corresponding mandate to create inferior courts implied that the Supreme Court had appellate jurisdiction over state courts, as they were the only other courts left.Footnote ⁸⁶ For Old Republicans such as Roane, such a decision “reduced the state courts to inferior tribunals” and constituted a threat to state sovereignty.Footnote ⁸⁷

The tacking back and forth escalated with Marshall's opinions in McCulloch v. Maryland (1819) and Cohens v. Virginia (1821). The two cases inspired a visceral reaction from Roane, who took to the newspapers to condemn the decision, first using the pseudonym “Hampden,” then adopting the name of seventeenth century British political theorist “Algernon Sidney.” William Brockenbrough—another member of Roane's circle—ignited the fray with his “Amphictyon” essays, re-asserting the compact theory and declaring that the federal government could not interfere with the states.Footnote ⁸⁸

Roane built on Brockenbrough's account in his first Hampden essay, asserting that the legislature had engaged in unconstitutional “warfare” against the states and the people, and that Marshall's rulings had abetted these actions, which foreshadowed a time “when the constitution may be expounded without ever looking into it!”Footnote ⁸⁹ He went on to argue that the Constitution created a situation whereby the federal government needed to prove where a power's constitutionality was derived from, and as the Constitution “has not given to [the federal government] jurisdiction over its own controversies, with a state or states,” then to assert such jurisdiction is a violation.Footnote ⁹⁰ Thus Roane rested his understanding of the federal government on expressly enumerated powers alongside his adherence to the compact theory.Footnote ⁹¹

To the latter point, Roane held that it was impossible for the Supreme Court to be the final arbiter in a dispute between the federal government and the states, as the federal government was merely a party to the compact, and the Supreme Court, being a constituent part of the created government, was subordinate to the states in the constitutional structure. The Court, therefore, would not be competent to judge cases involving itself, a partial restatement of Madison's argument. Roane expanded this principle saying that judicial supremacy over the states would permit legislative and executive supremacy, leaving states without anywhere to appeal to if the elected branches violated their rights.Footnote ⁹² Brockenbrough made a similar point about the partiality of the Court, insisting the states would never have committed the “egregious folly” of submitting themselves to a compact in which disputes between them and the central government would be decided by a part of the central government itself.Footnote ⁹³

Roane's “Algernon” essays in response to Cohens carried much of the same invective, railing against Marshall's attempt to consolidate the union and destroy state sovereignty in violation of the constitutional compact. On the explicit question of court jurisdiction, Roane put forth a new argument concerning the Eleventh Amendment, which he accused Marshall of construing narrowly. Marshall had insisted that the amendment's motive “was not to maintain the sovereignty of a State” or to keep it from appearing in federal court, because the amendment still allowed for federal jurisdiction in cases that arose between two or more states and between states and foreign nations. Roane responded that despite those allowances, the Eleventh Amendment demonstrated the general intent of the people to keep the states out of what was, in Marshall's words, “the degradation supposed to attend a compulsory appearance before the tribunal of the nation,”Footnote ⁹⁴ although in doing so Roane appeared to go beyond the text in asserting such implied intent. Nevertheless, Roane was on steadier ground when he attacked the very basis of Cohens as against the Eleventh Amendment, as well as being outside the list of justiciable grounds for which states could be brought into court under Article III, allowing him to retreat to the Tenth Amendment to assert a lack of federal authority for Marshall's ruling.Footnote ⁹⁵

As an interesting resolution to what would otherwise be an impasse, Roane appears to suggest a constitutional amendment to create a new impartial tribunal outside the federal government specifically to judge issues between the states and the federal government.Footnote ⁹⁶ This proposal shows that the judicial wing of the Old Republicans was not willing to completely reject the Court's power out of hand, but rather emphasized a clear delineation of power between the states and federal government.

These attacks did not go unopposed, however; Marshall took up his pen to respond under the names “A Friend to the Union” and “A Friend to the Constitution.” As might be expected, Marshall took a diametrically opposite view, and where Roane insisted that Marshall was trying to destroy the states, the chief justice contended that his Virginia counterpart was promoting an “antifederal spirit” that would return the nation to the fragmented confederation that had existed before the Constitution.Footnote ⁹⁷ In combatting this notion, Marshall rejected the compact theory as historically false, asserting that it was the people of the states, not the states themselves, who had created the Constitution. He interpreted Madison in the Report to only consider state ratifying conventions as representative of the people in their sovereign capacities, not as representative of the state governments.Footnote ⁹⁸ Responding to Roane's “Hampden” essays, Marshall advocated judicial nationalism, turning to the supremacy clause for why the federal government must have final jurisdiction and act as a final arbiter in federal–state conflicts. Similarly, Marshall reasserted the argument made in McCulloch—made in somewhat departmentalist language—that within its sphere of action, the federal government was supreme.Footnote ⁹⁹

Marshall's more extensive views on the federal government's power over the states can be seen more clearly in actual cases, specifically Cohens and Osborn v. Bank of the United States (1824). In both, Marshall argued that the judiciary's powers were coextensive with the legislature; however, where the Old Republicans might have seen this as restricting the courts to the enumerated powers listed, Marshall saw it as granting the federal judiciary supremacy analogous to the power that Congress exercised over the states.Footnote ¹⁰⁰ Marshall's analysis of the states as being “for some purposes sovereign, for some purposes subordinate” even appears to be derived from the understanding of the federal government described by Madison in Federalist 39, in which the constitutional structure is described as having “as many federal as national features.”Footnote ¹⁰¹ Further, Marshall contends that if the federal judiciary may rule on the validity of state laws, it must be able to rule on state court decisions. To not have this oversight and adopt concurrent federal–state review would remove an “essential” part of the governing framework and result in “contradictory and confusing interpretations.”Footnote ¹⁰²

Although Marshall only responded directly to Roane and Brockenbrough, they were not his only critics, as Taylor also rejected Marshall's nationalist assertions and accepted the premises of the compact theory. Taylor extended his departmental conception of the federal government to the states, insisting that the separation of powers among the federal branches equally applied to them. He considered such division as a natural part of checks and balances, with each level of government exercising a “mutual veto” on the other. Vetoes between the various departments and levels of government were, in Taylor's mind, the only certain way to prevent each branch “from usurping the rights of another.”Footnote ¹⁰³ Concurring with his judicial counterparts, Taylor thought it preposterous that the states would assent to making themselves subordinate to a central authority,Footnote ¹⁰⁴ and further agreed on the Court's partiality in deciding federal–state affairs.Footnote ¹⁰⁵

As mentioned previously, Taylor believed that judicial review undermined the very essence of popular rule, and that the power to overturn unconstitutional laws belonged to “juries, to officers, and to every citizen.”Footnote ¹⁰⁶ Whereas the political branches at both levels of government could be kept in check by the election process—as well as by their mutual vetoes on each other—the Supreme Court had no such limitation, which made granting the Court an “exclusive veto” over state and federal issues exceedingly dangerous. Looking to the historical vetoes of the English King and Roman Tribune, Taylor commented that whereas the latter was subject to popular control, it protected liberty; the former was used only to expand power; and the Court's veto had more in common with monarchical English tyranny than with republican Roman restraint.Footnote ¹⁰⁷ Having judges overturn laws transformed them into “a greater legislative power” even than Congress, able to “extend its claims far beyond precedent”Footnote ¹⁰⁸ and unconstitutionally concocted by the Court from a dubious “string of inferences.”Footnote ¹⁰⁹

Taylor further characterized the very notion of having the Court decide how powers were to be divided between the state and federal governments—or to even oversee congressional laws—as a “novel political doctrine” that “not a single person in the United States contemplated” at the time of ratification.Footnote ¹¹⁰ Drawing from the Philadelphia Convention debates, Taylor noted that the negative on state laws had been specifically rejected, and it did not follow that congressional oversight of the states would be rejected only to allow judicial oversight, especially when that power was not expressly enumerated.Footnote ¹¹¹ Similarly, the Articles of Confederation and Declaration of Independence had recognized the sovereignty of the states and had not relied on a judicial department for preservation, and neither had the Constitution. The absence of both an expressly enumerated power and a check to block judicial tyranny solidified “that the rights of both Federal and State governments, were not intended to be surrendered to six men, so as to make them administrators of powers to political departments, and guardians of the guardians of liberty.”Footnote ¹¹² To grant the Court power to change the Constitution effectively gave a single judge—if a single judge were needed to form a majority—power equivalent to the three fourths of the states needed for a constitutional amendment.Footnote ¹¹³

Stripped of its ability to oversee congressional laws and of its appellate jurisdiction over the states, Taylor viewed the Court—and judicial power generally—as simply the arbitrator for settling disputes between individuals and through which constitutional legal rights would be enforced.Footnote ¹¹⁴ On top of this, he emphasized that when the Constitution “operates upon collisions between political departments, it is not to be construed by the court,” as the Court has “has no power to settle those of political departments.”Footnote ¹¹⁵ Reference to the Supreme Court's supremacy only applied to its oversight of congressionally created inferior courts, a category state courts clearly did not fall into.Footnote ¹¹⁶

Taylor, however, should not be construed as asserting state dominance over the federal government either; instead, he asserted that neither the states nor the federal government could claim supremacy over the other. To Taylor, the essential nature of review between the levels of government was equal to the point of a stalemate: “Neither or both can construe the constitution. Neither or both can alter it by construction. Neither or both can exercise the power of usurping a right belonging to the other. Neither or both can defend its own rights. The constitution gives no supremacy to either of these departments over the other.”Footnote ¹¹⁷ The remedy for resolving impasses between the state and federal governments would be a constitutional amendment, which Taylor noted could be initiated either by Congress or by the states,Footnote ¹¹⁸ although Sheldon and Hill contend that such a system still gives the states an edge and reveals Taylor's pro-states’ rights bias even while trying to give the appearance of equality.Footnote ¹¹⁹

Turning to the party leadership, it is surprising that Randolph, the legislative leader of the Old Republicans, did not weigh in on this particular question, but his inclinations are evident in his effusive praise of Roane, remarking that “[e]verything from his pen on the subject of our laws and institutions excites a profound interest” and proclaiming “I want to have Spencer Roane for President.” Randolph even asked Roane's pamphlet partner Brockenbrough to convey to Roane that he had been “a zealous, and consistent, and…able defender of states’ rights.”Footnote ¹²⁰ Although Randolph did not take an active part in the issue of federal judicial power over the states, the upper leadership split, as Jefferson sided with the Old Republicans while Madison did not. Instead, Madison took a centrist position more in line with Marshall's. Neither of the former presidents made public statements during the debate following McCulloch, but their writings to and about the combatants indicate their general predilections.

In three letters, to Roane, newspaper editor Thomas Ritchie, and Justice William Johnson—the first of his three Court appointees—Jefferson expressed his basic agreement with the Old Republicans and their extension of coordinate review to the states. He seemed particularly amenable to Taylor's arguments, commenting that “Colonel Taylor and myself have rarely, if ever, differed in any political principle of importance.”Footnote ¹²¹ His letter to Roane displays similar agreeability, praising the Hampden letters and proclaiming that he “subscribe[d] to every tittle of them,” even telling Roane that he captured “the true principles of the revolution of 1800.”Footnote ¹²² In the letter to Johnson, Jefferson remarked that Roane's “Sidney” essays “pulverize[d] every word which had been delivered by Judge Marshall, of the extra-judicial part of his opinion.”Footnote ¹²³ Beyond these lavish praises, Jefferson displays some of his own thoughts. Reflecting Brutus, Taylor, and Randolph, Jefferson bemoans the lack of popular control over the judiciary, allowing for the continuance of “the reprobated system” whereby the Court has attempted to construe the Constitution “from a co-ordination of a general and special government to a general and supreme one.”Footnote ¹²⁴ This concern was important enough to Jefferson for him to reiterate in his Autobiography, repeating the complaint that the difficulty of impeachment made it virtually impossible for the elected branches to exercise control over the courts, allowing judges to be “effectively independent of the nation.” The result would be judges enlarging their power and stripping states of their sovereignty, “consolidat[ing] all power in the hands of that government in which they have so important a freehold estate.”Footnote ¹²⁵

Apart from this fear of judicial independence run wild, Jefferson joined the Old Republicans in his disbelief that the states intentionally surrendered their own expansive authority to the national government.Footnote ¹²⁶ Further, he continued to adhere to the compact theory, under which “there could be no common judge among the parties of the constitutional compact, neither the Supreme Court, nor, much less, the federal government itself, since the latter was not the arbiter of the pact but was instead its object.”Footnote ¹²⁷ However, in conflicts between the states and federal government, Jefferson staked out a middle ground on the question of a final arbiter. Unlike Taylor, Jefferson did not insist that a stalemate must occur in state–federal conflicts; instead, he agreed with Marshall that there must be a final arbitrator, but rejected that it should be the Supreme Court. Interestingly, Jefferson seemed to point to different arbiters at different points. In his 1821 autobiography, Jefferson seems to join Roane in advocating for an overarching tribunal that would impose a “practical & impartial controul” [sic] and be made up of “a mixture of state and federal authorities.”Footnote ¹²⁸ In an 1823 letter to Johnson, however, he declares the people to be the ultimate arbiters, claiming that they were best represented when assembled into conventions similar to those that ratified the Constitution, and could be called forth by Congress or the states, making them the proper bodies for mediating these disputes.Footnote ¹²⁹ Given that the letter to Johnson was written later, it is reasonable to conclude that that was his final view on the matter. Nonetheless, it is clear that Jefferson rejected the Supreme Court as an ultimate arbitrator in state and federal conflicts.

Madison, on the other hand, took a position closer to Marshall's. Although concurring with Jefferson and the Old Republicans on denouncing Marshall's broad construction and emphasizing the need for clear delineation of power between the federal and state governments,Footnote ¹³⁰ Madison still preferred the Court to act as the final decision maker for constitutional questions between the two levels. Although he maintained his commitment to the compact theory, Madison believed that it would be disastrous for the union for each state to decide constitutional questions for itself. In a letter to Roane, Madison explained that “[w]ere this trust to be vested in the States in their individual characters, the Constitution of the U.S. might become different in every State.” The result would be differences in sovereignty and diverse relations with the federal government, all leading inexorably to disunion, consequences that would be avoided with the federal courts acting as final authorities and “representing the whole.”Footnote ¹³¹ A similar argument was made in correspondence with Jefferson, as Madison told his old friend it was better to let the courts have ultimate review than to put up with the slow, expensive, and troublesome process of holding conventions for every dispute, or having “trial[s] of strength” between the states and national government to decide issues.Footnote ¹³² However, Madison did not reject the amendment process as providing a possible remedy if the judiciary continued acting in an “extrajudicial” manner, saying that he would “prefer a resort to the Nation for an amendment of the Tribunal itself, to continual appeals from its controverted decisions to that Ultimate Arbiter.” Nevertheless, amendments were a last resort; in the ordinary business of constitutional government, the Supreme Court had final authority in federal–state disputes.Footnote ¹³³

Now, as with the differing conceptions on the federal level, it is necessary to assess these differing interpretations of the federal courts’ power to oversee state decisions, but unlike at the federal level where there were roughly three categories, in the federal–state relationship there was a greater range of opinions. As illustrated in Figure 2, Marshall occupies one side of the spectrum, asserting federal supremacy; and Taylor stands at the other extreme, denying federal oversight of state actions. Jefferson also resides near Taylor, with the only difference being that whereas Taylor demands amendments to resolve disputes, Jefferson prefers state conventions. By comparison, Roane, Brockenbrough, and Randolph are more moderate, merely denying federal courts’ appellate jurisdiction over state courts. This leaves Madison to sit between the Virginia judiciary and Marshall, acknowledging the compact theory and condemning Marshall's rulings, but upholding federal supremacy as necessary for national peace and continued union.

Figure 2. Review of constitutional questions between the states and federal government.

With such diversity, it becomes even more necessary to determine how these ideological compatriots came to such different opinions on a power so central to the operation of a federal republic. Moving from Marshall's national supremacy to Taylor's state–federal equality, I will discuss how the different narratives of legal and political context, states’ rights, and slavery might explain the diverse spectrum of thought concerning judicial review between the states and national government. Beginning with Marshall, it is not terribly difficult to see his assertion of federal jurisdiction as simply an illustration of his basic political philosophy. As a Federalist and Hamilton devotee, Marshall had long insisted on the strength of the national government over the states, and it is unsurprising this would extend to the national courts. The narrative of Marshall being an unrepentant Federalist seems the most applicable here, and his insistence on federal appellate jurisdiction over state courts seems nothing more than a consistent application of his political and legal philosophy.

As for members of the Jeffersonian coalition, Madison is in a similar position to Marshall, as his insistence on the need for a final arbiter stretches back to his early national career. Madison had explained in Federalist 39 that the Supreme Court would be the final arbiter in disputes between states and between states and the federal government “to prevent an appeal to the sword, and a dissolution of the compact.”Footnote ¹³⁴ This principle of final federal oversight can be traced even farther back in Madison's political thought and practice, with his aforementioned congressional negative on state laws clearly showing an intent to have the national government oversee state actions.Footnote ¹³⁵ Michael Zuckert has even drawn a distinct link between this failed initiative and the judiciary, arguing that it—along with Madison's failed Council of Revision—were folded into the courts’ powers.Footnote ¹³⁶ This position on the need for a superintending arbiter over the federal system between the constituent parts of the union was clearly deep seated within Madison's political thought, as it persisted from the 1780s through to his stout stance against John C. Calhoun and the nullifiers in the 1830s.

The origin for this consistent appeal to a final constitutional arbiter seems to fit with the legal context in which Madison was raised. Both Zuckert and LaCroix point to Madison drawing inspiration from the British Privy Council on how a confederation such as the United States might retain constitutional uniformity and not break into multiple smaller pieces; a fear he expressed during ratification and reiterated even while condemning Marshall's decisions more than 30 years later.Footnote ¹³⁷ This historical and legal context appears to best explain why Madison would side with his Federalist rival Marshall over his dear friend Jefferson and their partisan allies on this question. Additionally, Madison's nationalist streak emphasizes a concern for stability and unity within the constitutional order, which discouraged frequent recurrence to popular upheavals. For the Old Republicans, and Jefferson to a certain extent, such worries were secondary to larger fears of centralization and preserving state sovereignty.Footnote ¹³⁸ With these considerations, it appears that it was political principle based on legal and political history that shaped Madison's judicial nationalism, differing from Marshall only in the content of the rulings rather than on the Court's basic review powers. Therefore, the political situation, states’ rights, and slavery seem to have had minimal impact on Madison's conception, as he went against his own party on all those issues to defend the supremacy of the national government in judicial matters.

Of the trio that denied appellate jurisdiction—Roane, Randolph, and Brockenbrough—because Roane led on the issue, I will focus on explaining his position and whether it fits with the aforementioned contexts and narratives of states’ rights and slavery. The states’ rights narrative clearly applies to Roane's refusal to grant power to federal courts to oversee state court decisions, particularly when one considers that his foundational premise of the Court being unsuited to be an arbiter was derived from the compact theory. It may also be argued that Roane's arguments were driven by self-interest, as having state courts be the final arbiters of normal constitutional questions would enhance his position as the leading judge of the Virginia Court of Appeals. Although this is certainly possible, it is impossible to prove conclusively, and given that it does not conflict with Roane's other arguments on the primacy of the states, it is difficult to see if Roane entertained such considerations, and how much effect they may have had on his conception of federal–state jurisdictional relations. Nonetheless, Roane importantly did not deny the Court jurisdiction in those instances explicitly granted by the Constitution, emphasizing his strict constructionist tendencies. However, Roane's rejection of federal appellate power still falls within the Privy Council tradition, as he acknowledges the need for a superintending authority to resolve disputes, only insisting that it should not be the Supreme Court, but another higher tribunal. There is always the possibility that Roane was inputting politics into law in his conflict with Marshall; however, from their back and forth it seems more to be a question of constitutional interpretation and principle, displaying the fundamental disagreement between Marshall's nationalist and Hamiltonian loose construction and Roane's states’ rights and Jeffersonian strict construction. Therefore, it is not unreasonable to see Roane simply implementing his own constitutional vision in denying the federal courts appellate authority, absent of politics.

On slavery, Roane notably upheld Wythe's antislavery rulings. Although his reasoning insisted on the slavery's legal basis, it does not appear that slavery was enough of a pull to dictate how he interpreted federal appellate jurisdiction. Roane certainly fit within the states’ rights narrative of the Old Republicans on the question of how judicial review should operate in a federalist system, but he did not seem to come to this view for particular political reasons or to defend slavery, but rather out of sincere ideological conviction for a specific form of constitutional interpretation.

Although the previously mentioned individuals have been fairly straightforward on these questions, Jefferson is, as the immense amount of literature on him shows, a bit more difficult to decipher. It would be easy to characterize Jefferson's opposition as purely political, given the immense amount of animosity between him and Marshall and the intense pressure placed on Marshall and the Court generally during the Jeffersonian period. However, the better explanation seems to be similar to that of Roane and Randolph: that it was a sincere devotion to states’ rights and strict construction that led him to eschew allowing federal courts to have appellate power over state courts. It is undisputable that Jefferson was committed to states’ rights, adhering to the compact theory that he and Madison set out in the Kentucky-Virginia Resolutions. As LaCroix has pointed out, Jefferson's support for a federated union preceded the Revolution, as he described how a federal system between the American colonies and British crown would work in his Summary View of the Rights of British America.Footnote ¹³⁹ If one looks at Jefferson's theory of federalism through his concept of the “gradation of authorities,” which gave specific powers to each layer of government, one may consider Jefferson as conceiving of federalism as a type of separation of powers, with appellate jurisdiction simply not being a power given to the federal courts, but preserved to the states.Footnote ¹⁴⁰ Jefferson did, however, embrace the final arbiter concept derived from Anglo-American legal history and the traditional role of the Privy Council, but he gives it a distinctly democratic cast by placing final arbitration power in the people. It is, therefore, unsurprising that Jefferson eventually saw constitutional conventions as the only way to resolve federal–state disputes, as these were expressions of the people—collected into the several states—in their ultimate sovereign capacity; as well as being consistent with Article V of the Constitution and thereby in line with his strict constructionist scruples.Footnote ¹⁴¹

With such an emphasis on states’ rights, it is clear not only that Jefferson fits the literature on the Old Republicans supporting states’ rights, but also that his views on federal jurisdiction were driven by a concern for federalism more than politics or even Anglo-American legal tradition. Of course, the issue of slavery must be addressed, but if we consider Jefferson's public actions and private sentiments against slavery, it seems highly unlikely that he would have supported states’ rights, and fought against federal appellate jurisdiction, simply to protect the peculiar institution. In public life, Jefferson ended the importation of slaves as president and included a prohibition against slavery in his proposed plan for the Western territories.Footnote ¹⁴² It is true that Jefferson's record on slavery is mixed, but he was not such a partisan for slavery that it would have overly influenced his views on the federal judiciary, particularly given his more straightforward record defending states’ rights. If any narrative is to be adopted in looking at Jefferson's relation to judicial review and the Old Republicans, he fits the traditional mold of a states’ right supporter looking to protect the people's sovereignty as represented in the states from an overbearing federal judiciary, rather than seeking to strip the federal courts of appellate jurisdiction for political or slavery-related causes.

Taylor also fits the states’ rights profile of an Old Republican. His emphasis on popular sovereignty—centered in the states—made him distrustful both of a judiciary able to dictate the constitutionality of a legislatively passed law and of the federal government more generally. Therefore, as with Jefferson and the other Old Republicans, Taylor's opposition seems based on a genuine conviction against federal authority and a philosophical understanding of sovereignty, which places it within the people as organized into states, not into a national government. It is an understanding that lends itself to states’ rights far more than a conception evoked by political considerations or historical legal practice. Taylor rejects the Anglo-American jurisdictional practice of there being a final arbiter, seeing stalemate as a reasonable result until a constitutional amendment is passed, something no other Old Republican was willing to grant. Additionally, although Taylor was not significantly antislavery, it is difficult to see slavery as a primary consideration in his opposition to federal appellate authority. Rather, it was a secondary consequence that slavery might be more protected in the states without the Supreme Court being able to make the final decision in certain cases; however, ensuring such an outcome was not Taylor's foremost goal. Localism was the priority, and slavery's status in the local structure was merely incidental.

On the whole then, the diverse nuances in opinion displayed by the Jeffersonians and Marshall are generally explained by two trends: emphasis on the need for a final arbiter derived from the Anglo-American federalist tradition, and genuine philosophical and constitutional differences on the nature of the union and states’ rights. Therefore, the narrative of a constitutionalism of slavery being a driving force for the Old Republicans and Jeffersonians does not appear to hold up when it comes to explaining their different stances on judicial review, even if the peculiar institution benefited as an indirect result of these state-centered conceptions. Although the causes for these views are few, the interpretations by them are wide ranging, adding multiple institutional conceptions beyond a simple dichotomy of federal or state power to the already varied spectrum of opinion that emerged at the federal level.

Effects of the Old Republicans

This diversity demonstrates not only the intellectual vigor of the Old Republicans, but also the immense range of opinion held by major public figures on an issue that is widely accepted and considered synonymous with judicial supremacy in contemporary discourse. From an intellectual history standpoint, looking at the Old Republicans’ conceptions of judicial review, particularly in relation to their leaders such as Jefferson, it is apparent that the Old Republicans were closer to the mainstream of Jeffersonian thought than had been previously supposed. Although it is difficult to define what the “Jeffersonian ideology” actually is, by focusing on two areas that were indisputably important to the Jeffersonian coalition—states’ rights and democracy—it is apparent that the Old Republicans’ notions of judicial review fit within those predominant subjects. As indicated by the previous analysis, the academic literature is correct to see states’ rights as a driving influence of the legal and political philosophies of the Old Republicans. Nearly all the Old Republicans agreed that the federal courts should not have appellate power over the states, drawing this conclusion from the compact theory elucidated by Jefferson and Madison. That Jefferson concurred in these assessments seems to confirm that the Old Republican line on judicial review between the states and federal government could be considered the proper Jeffersonian view. Although Madison's concern for a national federal arbiter separates him from his party, he still commiserated with the Old Republicans on Marshall's conduct and allowed that an appeal to the people via constitutional conventions and amendments—the preferred methods of Jefferson and Taylor, respectively—could become necessary to overcome the Supreme Court. Therefore, the issue of states’ rights was a central consideration for all of the Jeffersonians examined here, Madison included.

Questions of democracy also tied into these issues, as the Jeffersonians saw the people as collected into states as sovereign. To reject federal appellate authority and prefer constitutional conventions or amendments enacted by such conventions, as Jefferson and Taylor did, may be seen as respecting the sovereign power of the people to make the ultimate constitutional decisions. Even giving priority to state courts over federal courts, as Roane and other Old Republicans did, emphasized the courts created by the sovereign people collected into each state, instead of giving over final authority to a court that was only formed as part of a compact with other sovereign people gathered in the other states. On the federal level, it is not hard to see that the variety of opinion—ranging from departmentalism to legislative supremacy—as displayed by Jefferson, Madison, Taylor, and Randolph, indicates a respect for popular constitutionalism. Jefferson and Madison surely balanced it more with their conceptions of coordinate review, but Taylor and Randolph, with the latter embracing legislative supremacy, stressed the democratic aspects of popular constitutionalism against leaving interpretation to an unresponsive and undemocratic judiciary.

Although these areas show how the Old Republicans influenced the Jeffersonian coalition, taking a broader historical view, the Old Republican's conceptions of judicial review continued to be influential. Justice Gibson's famous dissent in the 1825 Pennsylvania Supreme Court case Eakin v. Raub resembles the criticisms expressed by Taylor and Randolph, particularly on the people being better equipped to correct legislative errors than judicial interpretations.Footnote ¹⁴³ Even after the Old Republicans died, their ideas continued to persist. As Risjord noted, the Old Republicans’ dedication to states’ rights ideologically led to the states’ rights Jacksonians. This can be seen with Martin Van Buren building the Democratic Party partially along states’ rights lines; Jackson acknowledging state sovereignty; Calhoun adopting the compact theory in advocating nullification; and the presidency of John Tyler, whom Risjord characterizes as a mainline Old Republican.Footnote ¹⁴⁴ Even on judicial questions, the Old Republicans continued to be influential, as Van Buren picked up the argument against federal appellate authority, stating that such power “was an idea never broached by the Federal Convention, or in the slightest degree alluded to in the Constitution it adopted.”Footnote ¹⁴⁵ The jurisprudence of Marshall's successor Roger Taney displays a hint of Old Republican understandings of state power in the federal system, as he emphasized the Jacksonian concept of dual sovereignty. This relationship should not be overstated, however, as Taney expanded federal judicial power in certain areas and did not deny the power of judicial review—as can be seen in Dred Scott—but his tenure does show the lingering effect of states’ rights constitutionalism.Footnote ¹⁴⁶

Apart from these more direct inheritances of Old Republican constitutional theory, an indirect legacy is observable in that modern scholarship is to some extent still debating the central questions about judicial review that the Old Republicans were divided about. In particular, the spectrum of opinion observed for judicial review at the federal level—judicial supremacy, departmentalism, and legislative supremacy—seems to be repeated in contemporary discourse. This is particularly evident in protestations of judicial supremacy, as some argue for the courts to be stripped of their constitutional review powers, whereas others insist on a middle ground of “weak-form judicial review” that has shades of departmentalism but tends toward final legislative review.Footnote ¹⁴⁷ Similarly, concerns about the counter-majoritarian difficulty and continuing debate between judicial deference and judicial activism can be glimpsed in some of the Old Republicans’ discussions of judicial review as violating popular constitutionalism and the need for public accountability in constitutional interpretation.

In examining the Old Republicans and their conceptions of judicial review, one sees not only that opinions on the role of judicial review in early national America varied widely, but also that these views were intimately tied to the federal nature of the union, with conceptions shifting depending upon which level of government one was examining. In comparing these men to their party leaders and John Marshall, it is also apparent that the Old Republicans demonstrated a philosophical influence on the Jeffersonian movement generally and even on Jefferson himself, indicating that they were more in the mainstream of Jeffersonian political and constitutional theory than had been previously thought. Such influence is even observable in looking at later generations who claimed the Jeffersonian mantle, particularly the Jacksonians. At the same time, however, the fact that their ideas have been pushed to the margins of history and were largely rejected by their other party leader Madison—as well as divided among themselves in various ways—also displays a split within the Jeffersonian movement that has not been fully appreciated. From a historiographic angle, noting the previous literature and historical context, one sees that they tended to be strongly influenced by the legal context they worked in and took states’ rights quite seriously. Further, although slavery was a major topic of concern, it appears to have been a secondary consideration in their legal and constitutional theories.

On the whole, understanding how the Old Republicans perceived judicial review provides lasting insights both into the historiography of the period and into the continuing literature on judicial review. First, one sees that the Old Republicans were not monolithic, and conceived of this issue quite differently even while having similar backgrounds and operating within a party faction that was purist in its politics. Second, early American conceptions of judicial review operated on two levels, the horizontal national level, and the vertical federal–state level, adding another dimension to how these men conceived both of judicial review and constitutional theory generally. Finally, one can observe that the current debates over judicial review are not new, but stretch back to the very origins of the practice in early national America, with far more variation than simple judicial supremacy versus departmentalism.