The Case of the Prisoners and the origins of judicial review.

AuthorTreanor, William Michael
Position1782 case in Virginia of Commonwealth v. Caton

INTRODUCTION

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.(1) 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(2) was an act of judicial usurpation.(3) In this century, scholars have continued to study these cases as part of that debate.(4) 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.(5)

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been brought to bear on the study of revolutionary-era judicial review.(6) Remarkably, however, there are two sets of unpublished attorneys' notes that have been preserved in library collections of personal papers that have never been analyzed by scholars of judicial review: the notes of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(7) when he published a report of the case in 1827).(8) 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.(9) Although now largely forgotten, Tucker was a member of the Virginia Court of Appeals, a federal judge,(10) and, in the words of Dean Paul Carrington, "arguably the most important American legal scholar of the first half of the nineteenth century."(11)

Far more significant, however, is the fact that Randolph's and Tucker's notes are perhaps the best evidence that we have about how people at the time of the Constitution's drafting thought a court should construe a constitution, a subject of critical concern to originalists today. These notes are apparently the only surviving sources from the revolutionary era in which attorneys in a case in which a statute's validity was challenged discussed how to interpret constitutional provisions. Similarly, other than in the Case of the Prisoners, none of the judicial opinions of which we have a record confronts the issue of constitutional construction. The absence of consideration of this issue is not surprising because these cases primarily involved challenges to statutes based on violations of unwritten fundamental law, such as the traditional right to a jury, rather than on violations of written constitutions.(12) Furthermore, as Professor Charles Lofgren has observed, "[t]he members of the Philadelphia Convention were silent about how they expected the Constitution to be interpreted."(13) Adding to the value of Randolph's and Tucker's analyses is the fact that they both argued out of personal conviction, rather than to advance the interests of a client. Tucker, appearing before the court as an amicus, was arguing for himself. More surprisingly, Randolph, although contending as state attorney general that the challenged statute should be upheld, informed the court that he was duty bound to disclose his personal belief that a statute could be declared unconstitutional. In short, neither set of notes reflects partisan bias.

For originalists, then, these notes are a uniquely valuable guide to background understandings of how the Constitution was to be interpreted. What makes them of dramatic significance for originalists is that, as this Article will show, the notes reflect views of constitutional interpretation that are at odds with leading modern scholarship on the original understanding of the Framers on matters such as the significance of original intent, the judicial obligation to follow constitutional text strictly, and the extent to which courts should defer to legislatures. Thus, this new evidence is not only the best evidence we have about constitutional construction at the time of the framing, but it directly challenges received notions about the original understanding of that subject. Given the importance of originalism to modern constitutional jurisprudence, this challenge has important current ramifications in terms of how the Constitution should be understood.

Apart from the specific value of these notes, the Case of the Prisoners--in which three condemned men claimed that Virginia's Treason Statute violated the state constitution--merits careful study because it was in all likelihood the earliest case in which an American court, after independence, faced the issue of whether it could declare a statute unconstitutional, and because the case provided the occasion on which an astonishing number of important figures were forced to confront that issue for the first time. Two of the judges, George Wythe and John Blair, joined Randolph as representatives of Virginia at the Federal Constitutional Convention. John Francis Mercer, one of the lawyers who, like Tucker, argued as an amicus in the case, attended the Convention as a delegate from Maryland. James Madison was also intimately familiar with the case. He corresponded with both Chancellor Edmund Pendleton, the presiding judge, and Randolph about the case and acquired Pendleton's notes of his opinion. After repeated requests from Madison, Randolph sent him a part of the rough draft of his argument.(14) To the extent, then, that the early cases deserve examination in order to determine what arguments concerning judicial review the Framers were exposed to and what their reactions to those arguments were, the Case of the Prisoners is worthy of close focus; it is probable that no other case was so well-known to such a large group of Framers. To the extent that the early cases merit study in order to understand Marbury, the Case of the Prisoners is particularly worthy of attention: apparently present among the crowd that gathered in the courtroom to hear the decision was John Marshall, then a young Virginia lawyer.(15)

Part I of this Article draws on Randolph's and Tucker's notes as well as other primary sources, such as letters, government records, and Pendleton's notes, to provide a detailed account of the Case of the Prisoners. These records indicate that two of the eight judges on the court of appeals took the position that the court had the power to declare statutes unconstitutional--one of the judges being Marshall's former law professor, George Wythe--and these may have been the first American judges to take this position. Only one judge held that the court did not have this power, and the others did not reach the issue.

Part II discusses the relevance of the case to a number of critical originalist legal debates. Perhaps most significant is the case's bearing on the question whether the founding generation believed original intent relevant to constitutional interpretation. In the leading article on the topic, The Original Understanding of Original Intent, H. Jefferson Powell argued that the original understanding was that the Framers' subjective intent was irrelevant.(16) Understandably (given that he did not have access to Randolph's and Tucker's notes, the only surviving revolutionary-era legal documents that seriously examined the issue), Powell based his view of the background understanding animating the Framers on inferences from schools of interpretation that he believed available to the Framers, and he did not probe revolutionary-era case law. Tucker and Randolph, however, both appealed to original intent, and Tucker, more to the point, specifically invoked the subjective intent of the state constitution's framers. The case thus suggests that the Framers of the Federal Constitution had available to them a view of interpretation under which their subjective intent was directly relevant to constitutional construction.

More broadly, where Powell argues that the only hermeneutic traditions available to the Framers were completely or predominantly focused on text, the Case of the Prisoners suggests that many of the founding generation were "anti-literalists"(17) who believed constitutions should be interpreted in light of their spirit, even when the spirit was at odds with the text. Indeed, appeals to the spirit of the Virginia Constitution are central to the arguments advanced in the case and indicate that extraconstitutional sources (including, but not limited to, evidence of original intent) were considered relevant to constitutional interpretation.

At the same time, the Case of the Prisoners challenges the conclusion reached by scholars who argue that early theories of judicial review embodied a constrained conception of the judicial role. While Randolph's argument reflects a limited notion of judicial review, Tucker's argument rests on an expansive view of judicial review. His argument, in conjunction with subsequent Virginia...

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