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For over one hundred years, scholars have closely studied the handful of cases in which state courts, in the years before the Federal Constitutional Convention, confronted the question whether they had the power to declare laws invalid. Interest in these early cases began in the late nineteenth century as one aspect of the larger debate about the legitimacy of judicial review, a debate triggered by the increasing frequency with which the Supreme Court and state courts were invalidating economic and social legislation. The lawyers, political scientists, and historians who initially unearthed the case law from the 1770s and 1780s used the product of their research to argue either that judicial review was sufficiently established at the time of the Federal Constitutional Convention so as to be part of the original understanding, even though the Constitution makes no mention of judicial review or, alternatively, that Marbury v. Madison was an act of judicial usurpation. In this century, scholars have continued to study these cases as part of that debate. More recently, the cases have been at the core of the controversy over whether the original understanding permits the use of extraconstitutional sources, such as natural law, in judicial review.

Given that judicial review in the revolutionary era is one of the most closely scrutinized subjects in legal history, it has long appeared that any significant primary sources from these cases had been analyzed. Indeed, it has been over forty years since a new source has been brought to bear on the study of revolutionary-era judicial review. Remarkably, however, there are two sets of unpublished attorneys' notes that have been preserved in library collections of personal papers that have never been analyzed by scholars of judicial review: the notes of Edmund Randolph and of St. George Tucker in Virginia's 1782 Case of the Prisoners (which reporter Daniel Call entitled Commonwealth v. Caton when he published a report of the case in 1827). These notes are significant in part because their authors were to become major legal figures and their early thinking on judicial review is therefore of value to constitutional historians. As a member of the Federal Constitutional Convention, Randolph proposed the Virginia Plan, the principal source for the Federal Constitution, and he subsequently was the first United States Attorney General and, later, Thomas Jefferson's successor as Secretary of State. Although now largely forgotten, Tucker was a member of the Virginia Court of Appeals, a federal judge, and, in the words of Dean Paul Carrington, "arguably the most important American legal scholar of the first half of the nineteenth century."

Publication Citation

143 U. Pa. L. Rev. 491-570 (1994)