Hostname: page-component-cd9895bd7-q99xh Total loading time: 0 Render date: 2024-12-27T10:38:10.712Z Has data issue: false hasContentIssue false
  • English
  • Français

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

Published online by Cambridge University Press:  15 March 2017

Jordan T. Cash
Get access Rights & Permissions [Opens in a new window]

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.

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

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

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

1. For illustrations of this departmentalist and judicial review skeptic literature see Murphy, Walter F., “Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter,” The Review of Politics 48 (1986): 401–23Google Scholar; Peabody, Bruce G., “Overcoming Judicial Supremacy: A Constitutional Primer” The Good Society 10 (2001): 57–62 Google Scholar; Tushnet, Mark, Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 1999)Google Scholar; Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2004)Google Scholar; Fisher, Louis, Constitutional Dialogues: Interpretation as Political Process (Princeton: Princeton University Press, 2014)Google Scholar; and Fisher, Louis, Defending Congress and the Constitution (Lawrence, Kansas: University Press of Kansas, 2011)Google Scholar.

2. Kirk, Russell, John Randolph of Roanoke: A Study in American Politics With Selected Speeches and Letters (Indianapolis, Indiana: Libertypress, 1978), 24 Google Scholar.

3. Vile, M.J.C., Constitutionalism and the Separation of Powers, 2nd ed. (Indianapolis: Liberty Fund, 1998), 183 Google Scholar. For a short overview of Taylor's political thought, see Wright, Benjamin F., “The Philosopher of Jeffersonian Democracy,” The American Political Science Review 22 (1928) 870–92Google Scholar.

4. Kirk, John Randolph of Roanoke 16–17.

5. Sir Coke, Edward, “Thomas Bonham v. College of Physicians,” in The Selected Writings and Speeches of Sir Edward Coke, ed. Sheppard, Steve (Indianapolis: Liberty Fund, 2003), 1:264Google Scholar.

6. Hamburger, Philip, Law and Judicial Duty (Cambridge, MA: Harvard University Press, 2008), 2–14, 207Google Scholar; Kramer, The People Themselves, 20.

7. LaCroix, Alison L., The Ideological Origins of American Federalism (Cambridge, MA: Harvard University Press, 2010), 139–45Google Scholar.

8. Prakash, Saikrishna B. and Yoo, John C., “The Origins of Judicial Review,” in The University of Chicago Law Review 70 (2003): 887–982, at 933–34Google Scholar.

9. Madison, James, Notes of the Debates in the Federal Convention of 1787 Reported by James Madison (New York: W.W. Norton and Company, 1987)Google Scholar. For particular references to judges ruling on constitutionality, see Elbridge Gerry on June 4 (at 61), Madison on June 6 (at 79–80), Gouverneur Morris on July 17 (at 305), and Luther Martin and George Mason on July 21 (at 340–42).

10. Treanor, William Michael, “Judicial Review Before Marbury ,” Stanford Law Review 58 (2005): 455–562, at 457–58Google Scholar.

11. The first two upheld a federal and state law, respectively, whereas Ware struck down a state law as inconsistent with the Treaty of Paris.

12. Stoner, James, “Who Has Authority Over the Constitution?” in The Supreme Court and the Idea of Constitutionalism, ed. Kautz, Steven, Melzer, Arthur, Weinberger, Jerry, and Zinman, M. Richard (Philadelphia: University of Pennsylvania Press, 2011), 101–2Google Scholar.

13. Wythe, Commonwealth v. Caton & al. 8 Va. (4 call) 5 (1782).

14. Pendleton quoted in Hobson, Charles F., The Great Chief Justice: John Marshall and the Rule of Law (Lawrence, KS: University of Kansas Press, 1996), 44 Google Scholar. Hobson contends that Pendleton was a precursor to Marshall's form of judicial review, although Miller asserts that Pendleton was merely trying to defend the judiciary's independence, and generally believed that the legislature was not to be judged, as it represented the people's will. Furthermore, Miller sees Pendleton and Wythe as the point of divergence in Virginia legal philosophy, with Wythe being the forebear of Marshall and Pendleton being a precursor of Roane and Taylor. See Miller, F. Thornton, Juries and Judges Versus the Law: Virginia's Provincial Legal Perspective, 1783–1828 (Charlottesville: University Press of Virginia, 1994), 63–65 Google Scholar.

15. Spencer Roane, Kamper v. Hawkins, 3 Va. 20, (1793); Hobson, The Great Chief Justice, 66.

16. Huebner, Timothy S., The Southern Judicial Tradition: State Judges and Sectional Distinctiveness, 1790–1890 (Athens, GA: University of Georgia Press, 1999), 18 Google Scholar.

17. Hill, C. William Jr., The Political Theory of John Taylor of Caroline (Teaneck, NJ: Farleigh Dickinson University Press, 1977), 80 Google Scholar.

18. Banning, Lance, The Jeffersonian Persuasion: Evolution of a Party Ideology (Ithaca: Cornell University Press, 1978), 283 Google Scholar; Middlekauff, Robert, The Glorious Cause: The American Revolution, 1763–1789. The Oxford History of the United States. (Oxford: Oxford University Press, 2005), 51–52 Google Scholar; and Rutland, Robert A., “The Revolutionist as Conservative,” in The American Founding: Politics, Statesmanship, and the Constitution, ed. Rossum, Ralph A. and McDowell, Gary L.. (New York: Kennikat Press, 1981, 94–107)Google Scholar.

19. Risjord, Norman K., The Old Republicans: Southern Conservatism in the Age of Jefferson (New York: Columbia University Press, 1965), 1 Google Scholar.

20. Ibid., 86–95.

21. Skowronek, Stephen, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (Cambridge: Harvard University Press, 1997), 81 Google Scholar.

22. Taylor to Wilson Cary Nicholas, October 26, 1807, in Cunningham, Noble E. Jr., The Jeffersonian Republicans in Power: Party Operations, 1801–1809 (Chapel Hill: University of North Carolina Press, 1963), 231 Google Scholar.

23. Van Cleve, George William, A Slaveholder's Union: Slavery, Politics, and the Constitution in the Early American Republic (Chicago: University of Chicago Press, 2010), 9 Google Scholar; and Walderstreicher, David, Slavery's Constitution: From Revolution to Ratification (New York: Hill and Wang, 2009), 9 Google Scholar.

24. Graber, Mark A., Dred Scott and the Problem of Constitutional Evil (Cambridge: Cambridge University Press, 2006)Google Scholar.

25. Van Cleve, A Slaveholder's Union, 140. Van Cleve does note, however, that tampering with election rules at the state level likely deprived Jefferson of electoral votes that he otherwise would have received, offsetting the benefits that he gained from the premium. Nonetheless, others have argued that the three-fifths clause enabled Southern dominance of the federal government up to the Civil War, see Wills, Garry, “Negro President”: Jefferson and the Slave Power (Boston: Houghton Mifflin and Co., 2003), 5 Google Scholar; and Graber, Dred Scott, 115–16.

26. Riley, Padraig, Slavery and the Democratic Conscience: Political Life in Jeffersonian America (Philadelphia: University of Pennsylvania Press, 2016)Google Scholar.

27. Van Cleve, A Slaveholder's Union, 267.

28. Johnson, Walter, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Cambridge, MA: Harvard University Press, 2013), 372–73, 404Google Scholar.

29. Van Cleve, A Slaveholder's Union, 96–99. For a broader discussion on law in Virginia's slave society, see Tomlins, Christopher, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (Cambridge: Cambridge University Press, 2010), 258–77Google Scholar; and Tomlins, Law, Labor, and Ideology in the Early American Republic (Cambridge: Cambridge University Press, 1993), 250–63Google Scholar.

30. Cover, Robert M., Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1984), 71–72 Google Scholar; and Wolf, Eva Shepherd, Race and Liberty in the New Nation: Emancipation in Virginia from the Revolution to Nat Turner's Rebellion (Baton Rouge: Louisiana State University Press, 2006), 155–56Google Scholar. See also Pleasants v. Pleasants 6 Va. (2 Call) 319 (1799) and Charles v. Hunnicutt (5 Call) 311 (1803).

31. Cover, Justice Accused, 52–54. Hudgins v. Wright 1 Hen. & M. 134, 11 Va. 134 (Va. Nov. 7, 1806). Unfortunately, Wythe's original opinion has not survived.

32. Hobson, The Great Chief Justice, 66–67; Kramer, The People Themselves, 125–26.

33. Kramer, The People Themselves 123–28.

34. Jefferson to William Johnson, June 12, 1823, in Jefferson, Thomas (ed. Peterson, Merrill D.), Writings, (New York: Literary Classics of the United States, Inc., 1984), 1474 Google Scholar.

35. Mendelson, Wallace, “Jefferson on Judicial Review: Consistency through Change,” The University of Chicago Law Review 29 (1962), 328–29Google Scholar. Mendelson argues that Jefferson supported judicial supremacy before 1800 and changed his position in opposition to the Marshall Court. However, Jefferson phrased his support for judicial review as a “legal check” or “legal obstacle.” Taken alongside his linkage of judicial review with the executive veto, it seems that Jefferson maintained a concurrent review position going back at least to 1787 which he consistently held into the 1800s.

36. Patterson, C. Perry, “Jefferson and Judicial Review,” American Bar Journal 30 (1944), 445–46Google Scholar.

37. Jefferson to Torrance, W.H., June 11, 1815, in The Writings of Thomas Jefferson, ed. Ford., Paul (New York: G.P. Putnam's Sons, 1898), 9:517–18Google Scholar.

38. Jefferson to Spencer Roane, September 6, 1819, in Writings, 1426.

39. Ibid., 1426–28.

40. Jefferson in Mayer, David N., The Constitutional Thought of Thomas Jefferson (Charlottesville, Virginia: University of Virginia Press, 1994), 269 Google Scholar.

41. Clinton, Robert Lowry, Marbury v. Madison and Judicial Review (Lawrence, Kansas: University Press of Kansas, 1989), 24–26 Google Scholar.

42. Madison in Brown, Stephen P., “Mirroring Madison: The Historic and Continuing Influence of James Madison on the U.S. Supreme Court,” in James Madison: Philosopher, Founder, Statesman, ed. Vile, John R., Pederson, William D., and Williams, Frank J. (Athens, OH: Ohio University Press, 2008), 160 Google Scholar.

43. Madison in Clinton, Marbury v. Madison and Judicial Review, 27.

44. “Brutus XV,” in The Anti-Federalist Papers and the Constitutional Convention Debates, ed. Ketcham, Ralph. (New York: New American Library, 2003), 305 Google Scholar. “Brutus” was likely Robert Yates, eventual chief justice of the New York Supreme Court. Ralph Ketcham, introduction to “’Brutus,’ Essays I, VI, X–XII, and XV,” in The Anti-Federalist Papers, 269, 307, 309.

45. John Randolph in Johnson, David E., John Randolph of Roanoke (Baton Rouge: Louisiana State University Press, 2012), 61 Google Scholar.

46. Kramer, The People Themselves, 48.

47. Kirk, John Randolph of Roanoke, 209.

48. Marshall to Samuel Chase, January 23, 1805, in The Papers of John Marshall, ed. Hobson, Charles (Chapel Hill: University of North Carolina Press, 1974), 6:347–48Google Scholar.

49. Wood, Gordon S., Empire of Liberty: A History of the Early Republic, 1789–1815. The Oxford History of the United States (Oxford: Oxford University Press, 2009), 423 Google Scholar.

50. Taylor, John (ed. Miller, F. Thornton) Tyranny Unmasked (Indianapolis: Liberty Fund Inc., 1992), 147 Google Scholar.

51. Ibid., 223.

52. Taylor, John, An Inquiry into the Principles and Policy of the Government of the United States (Fredericksburg, Virginia: Green and Cady, 1814), 179 Google Scholar.

53. Mudge, Eugene Tenbroeck, The Social Philosophy of John Taylor of Caroline: A Study in Jeffersonian Democracy. Number 4 of the Columbia Studies in American Culture (New York: Columbia University Press, 1939), 124–25Google Scholar.

54. Sheldon, Garrett Ward and Hill, C. William Jr., The Liberal Republicanism of John Taylor of Caroline (Teaneck, New Jersey: Farleigh Dickinson University Press, 2008), 214 Google Scholar. Explanations for why Taylor did not propose judicial nominees as a solution range from the practical issue suggested by Sheldon and Hill that Monroe might not have had the requisite votes in the Senate to the more philosophical consideration that nominating federal judges to fix the problem might admit that the Supreme Court had the power that Taylor was trying to deny them in the first place.

55. Sheldon and Hill, Liberal Republicanism, 106.

56. Taylor, Tyranny, 152.

57. See Virginia Constitution of 1776.

58. Taylor, Inquiry, 208.

59. Sheldon and Hill, Liberal Republicanism, 107.

60. Howe, Daniel Walker, What Hath God Wrought: The Transformation of America, 1815–1848 The Oxford History of the United States. (Oxford: Oxford University Press, 2007), 122–23Google Scholar.

61. Roane, Spencer, “Hampden IV,” in John Marshall's Defense of McCulloch v. Maryland, ed. Gunther, Gerald. (Stanford: Stanford University Press, 1969), 148 Google Scholar.

62. Tucker, St. George, View of the Constitution of the United States With Selected Writings (Indianapolis: Liberty Fund, Inc., 1999), 120, 228–29, 290–95Google Scholar.

63. Wood, Empire of Liberty, 419. Marshall's tenure on the Court is a classic example of “partisan entrenchment,” in which a party places its partisans on the judiciary who are then able to enact the party's interpretation of the Constitution even after their party is no longer in power. See Balkin, Jack M. and Levinson, Sanford, “Understanding the Constitutional Revolution,” Virginia Law Review 87 (2001): 1045–104, at 1065–66Google Scholar.

64. Hobson, The Great Chief Justice, 66.

65. Swisher, Carl Brent, The Growth of Constitutional Power in the United States (Chicago: University of Chicago Press, 1946), 55 Google Scholar.

66. Hamilton, Alexander, “Federalist 78,” in The Federalist, ed. Hamilton, Alexander, Madison, James, and Jay, John (Cambridge: Hackett Publishing Company, Inc., 2005, ed. Pole, J. R.), 412 Google Scholar.

67. Marshall to Samuel Chase, January 23, 1805, in The Papers of John Marshall, 6:347–48.

68. Jefferson in Wood, Empire of Liberty, 424.

69. Bruce, William Cabell, John Randolph of Roanoke, 1773–1833: A Biography Based Largely on New Material (New York: Octagon Books, 1970), 2:244Google Scholar.

70. Kirk, John Randolph of Roanoke 156–89. Randolph's quotes are on pages 185 and 159, respectively. Kirk's are on pages 156 and 185, respectively.

71. Most of Taylor's discussion on slavery can be found in Taylor, John, Arator: Being a Series of Agricultural Essays, Practical and Political, in Sixty-Four Numbers (Indianapolis: Liberty Fund, 1977)Google Scholar.

72. Taylor, John, Construction Construed and Constitutions Vindicated (Richmond, VA: Shepherd and Pollard, 1820), 32 Google Scholar.

73. Hill, The Political Theory of John Taylor of Caroline, 197.

74. Ibid., 263–64.

75. Madison, Notes, 31; Madison in Gutzman, Kevin R. C., James Madison and the Making of America (New York: St. Martin's Press, 2012), 111 Google Scholar.

76. James Madison, Federalist 39, 32.

77. James Madison, Federalist 45, 253.

78. Madison, James, “Virginia Resolutions,” in We the States: An Anthology of Historic Documents and Commentaries thereon, Expounding the State and Federal Relationship. Virginia Commission on Constitutional Government. (Richmond, VA: William Byrd Press, Inc., 1964), 152 Google Scholar.

79. Madison, James, “Report of 1799,” in Jefferson, Thomas and Madison, James, The Kentucky-Virginia Resolutions and Mr. Madison's Report of 1799 (Richmond, VA: Virginia Commission on Constitutional Government, 1960), 18 Google Scholar. The Report was drafted in 1799, but delivered in 1800. As it was officially introduced in 1800, I will refer to it by that date.

80. Fritz, Christian G., American Sovereigns: The People and America's Constitutional Tradition Before the Civil War. Cambridge Studies on the American Constitution (Cambridge: Cambridge University Press, 2008), 208–9Google Scholar.

81. Hamilton, Federalist 78, 414–15.

82. James Madison, “’Mr. Madison's Report’ to the Virginia General Assembly,” in Madison, We the States, 165.

83. See Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 603 (1813)Google Scholar; and Smith, Jean Edward, John Marshall: Definer of a Nation (New York: Henry Holt and Company, 1996), 427 Google Scholar.

84. Huebner, The Southern Judicial Tradition, 32–33; Miller, F. Thornton, “John Marshall versus Spencer Roane: A Reevaluation of Martin v. Hunter's Lessee,” The Virginia Magazine of History and Biography 96 (1988), 309 Google Scholar.

85. Miller, Juries and Judges, 83.

86. Martin v. Hunter's Lessee, 14 U.S. Wheat 304 (1816). Notably, Marshall, Story, and other Federalists viewed the power of inferior federal courts as crucial not only to the establishment of federal judicial power, but also to the federal government's power generally. See LaCroix, Alison L., “Federalists, Federalism, and Federal Jurisdiction,” Law and History Review 30 (2012): 205–44Google Scholar.

87. Risjord, The Old Republicans 178–79.

88. William Brockenbrough, “Amphictyon I,” in John Marshall's Defense, 63–64.

89. Roane, “Hampden I,” in John Marshall's Defense, 109.

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.

92. Roane, “Hampden IV,” in John Marshall's Defense, 138–54.

93. Brockenbrough, “Amphictryon I,” in John Marshall's Defense, 58.

94. Cohens v. Virginia, 19 U.S. 6 Wheat. 264, (1821), 406.

95. Gutzman, Kevin R.C., Virginia's American Revolution: From Dominion to Republic, 1776–1840 (Lanham, MD: Lexington Books Inc., 2007), 175 Google Scholar.

96. Roane, “Hampden IV,” in John Marshall's Defense, 147.

97. Marshall quoted. in Hobson, The Great Chief Justice, 125.

98. John Marshall, “A Friend to the Union I,” in John Marshall's Defense, 82–89.

99. John Marshall, “A Friend to the Constitution V,” 187–88.

100. Cohens, 384–85; and Osborn v. Bank of the United States, 22 U.S. 738, (1824), 808.

101. Cohens, 414; and Madison, Federalist 39, 209.

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

103. Hobson, The Great Chief Justice, 147.

104. Taylor, Tyranny, 148; Sheldon and Hill, Liberal Republicanism, 170–71.

105. Taylor, John, New Views of the Constitution of the United States (Washington, DC: Way and Gideon, 1823), 126 Google Scholar; and Sheldon and Hill, Liberal Republicanism, 198.

106. Taylor, Inquiry, 201.

107. Taylor, Tyranny, 153

108. Taylor, Inquiry, 197, 200.

109. Taylor, Tyranny, 150.

110. Ibid.

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.

112. Taylor, Tyranny, 203–4.

113. Mudge, Social Philosophy of John Taylor, 125.

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

115. Taylor, Tyranny, 204.

116. Taylor, New Views, 128–29.

117. Ibid., 255.

118. Ibid., 255–57.

119. Sheldon and Hill, Liberal Republicanism, 221–22.

120. Randolph in Johnson, David E., John Randolph of Roanoke (Baton Rouge, Louisiana: Louisiana State University Press, 2012), 163 Google Scholar.

121. Jefferson to Thomas Ritchie, December 25, 1820, in Writings, 1445.

122. Jefferson to Roane, September 6, 1819, in Writings, 1425.

123. Jefferson to William Johnson, June 12, 1823, in Writings, 1473.

124. Jefferson to Roane, 1426; Jefferson to Ritchie, 1446.

125. Jefferson, “Autobiography,” in Writings, 73–74.

126. Jefferson to Johnson, 1475.

127. Bassani, Luigi Marco, Liberty, State, & Union: The Political Philosophy of Thomas Jefferson (Macon, Georgia: Mercer University Press, 2010), 213 Google Scholar.

128. Jefferson, “Autobiography,” in Writings, 74.

129. Jefferson to Johnson, 1476.

130. Madison to Roane, September 2, 1819, in Madison, James, Writings, ed. Rakove, Jack N.. (New York: Literary Classics of the United States, Inc., 1999), 733–34Google Scholar; and Madison to Roane, May 6, 1821, in Writings, 772–73.

131. Madison to Roane, June 29, 1821, in Writings, 778.

132. Madison to Jefferson, June 27, 1823 in Madison, James (ed. Hunt, Gaillard), The Writings of James Madison: 1819–1936 (New York: G.P. Putnam's Sons, 1910), 140–41Google Scholar.

133. Madison to Jefferson, June 27, 1823, in Writings, 801–802.

134. Madison, Federalist 39, 210.

135. Madison, Notes, 88–89, 92, 304–5, 518.

136. Zuckert, Michael, “Judicial Review and the Incomplete Constitution: A Madisonian Perspective on the Supreme Court and the Idea of Constitutionalism,” in The Supreme Court and the Idea of Constitutionalism, ed. Kautz, Steven, Melzer, Arthur, Weinberger, Jerry, and Zinman, M. Richard (Philadelphia: University of Pennsylvania Press: 2011), 57 Google Scholar.

137. Zuckert, “Judicial Review,” 63–64; LaCroix, Federalism, 145–46; Madison, Federalist 18.

138. McCoy, Drew R., The Last of the Fathers: James Madison and the Republican Legacy. (Cambridge, MA: Harvard University Press, 1989), 71 Google Scholar.

139. LaCroix, Federalism, 113–20; Jefferson, “A Summary View of the Rights of British America,” in Writings, 273–89.

140. Onuf, Peter S., Jefferson's Empire: The Language of American Nationhood (Charlottesville: University of Virginia Press, 2000), 120 Google Scholar; Jefferson to Joseph C. Cabell, February 2, 1816, in Writings, 1380; Jefferson to Samuel Kercheval, July 12, 1816, in Writings, 1399.

141. Bassani, Liberty, State, & Union, 213.

142. Thomas Jefferson, “Report on Government for Western Territory,” in Writings of Thomas Jefferson, 4:251–55. This prohibition was carried over into the Northwest Ordinance of 1787.

143. See Eakin v. Raub, 12 Sargeant & Rawl (Pennsylvania Supreme Court) 330 (1825).

144. For Van Buren see Remini, Robert V., Martin Van Buren and the Making of the Democratic Party (New York: Columbia University Press, 1959)Google Scholar; and Kelly, Alfred H., Harbison, Winfred A., and Belz, Herman, The American Constitution: Its Origins and Development, Vol. 1., 7th ed. (New York: W.W. Norton & Company, 1991), 201 Google Scholar. For Jackson see Jackson, Andrew, “First Inaugural,” in The Papers of Andrew Jackson, ed. Feller, Daniel, Moser, Harold D., Moss, Laura-Eve, and Coens, Thomas. (Knoxville: The University of Tennessee Press, 2007), 7:77–78Google Scholar. For Calhoun see Calhoun, John C., “Fort Hill Address,” in John C. Calhoun: Selected Writings and Speeches, ed. Cheek, H. Lee Jr. (Washington, DC: Regnery Publishing Inc., 2003), 317–19Google Scholar. On Tyler, see Monroe, Dan, The Republican Vision of John Tyler (College Station, TX: Texas A&M University Press, 2003)Google Scholar; Risjord, The Old Republicans, 267–70.

145. Van Buren, Martin, Inquiry into the Origin and Course of Political Parties in the United States (New York: Hurd & Houghton, 1867), 301 Google Scholar.

146. Kelly et al., The American Constitution 223–40.

147. For a modern argument against judicial review see Tushnet, Taking the Constitution Away from the Courts. For discussion of weak-form judicial review in modern legal systems, see Gardbaum, Stephen, The New Commonwealth Model of New Constitutionalism: Theory and Practice (Cambridge: Cambridge University Press, 2013)Google Scholar.