The Doctrine of Judicial Review
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Kentucky Law Journal Volume 20 | Issue 3 Article 3 1932 The oD ctrine of Judicial Review F. R. Aumann The Ohio State University Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Constitutional Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Aumann, F. R. (1932) "The octrD ine of Judicial Review," Kentucky Law Journal: Vol. 20 : Iss. 3 , Article 3. Available at: https://uknowledge.uky.edu/klj/vol20/iss3/3 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. THE DOCTRINE OF JUDICIAL REVIEW The relationship of the judiciary to the legislature is neces- sarily close, inasmuch as a large part of the court's time is spent in interpreting and applying law created by legislature. On the other hand legislative bodies in their turn, exercise con- siderable power over the judiciary. For one thing, legislative appropriations are necessary for the maintenance and opera- tion of the judicial departments. Then too, *where provisions of organization and tenure are not completely set forth in the Constitution, it becomes the duty of the legislature to make such provisions as are necessary.1 This places a large control of the judicial department in the hands of the legislature.2 Certain judicial powers have also been retained by legisla- tive bodies. 3 The power of impeachment is one instance of this kind. Up to date this power has been sparingly used in this country and the independence of the executive and the judiciary 'The Constitution of the United States, for example, provides that the judicial power shall be vested in one Supreme Court and In such inferior courts as Congress may from time to time ordain and estab- lish. Consequently, Congress can determine the number of judges appropriate for the Supreme Court and create any additional tribunals which appear necessary for the transaction of federal business. Thus it might reduce the number of judges by providing that on the death or resignation of any of them the vacant post shall be abolished; then at the proper moment it might increase the number of judges to secure the appointment of men to its liking. The most outstanding example of legislative activity in this regard took place in 1802 in Jefferson's administration, when Congress repealed a law providing for sixteen circuit judgeships which President Adams had filled with Federalists the year before. 2In 1809, the legislature of Ohio passed an act declaring that the Constitution was to be interpreted as vacating all seven-year appoint- ments in 1810, not excepting cases in which the current incumbent had been appointed to fill a vacancy caused by the death or resigna- tion of the original holder. By this use of this provision, the legisla. ture was able to reconstruct the judicial personnel of the state. Three supreme court judges, three president judges of the common pleas courts, all the associate judges of that court (more than a hundred in number), and all of the justices of the peace of the state, were removed by this so-called "sweeping resolution." See Rufus King, Ohio, First Fruit o1 the Ordinance of 1787 (1888), p. 314. For an interesting account of the rivalry between the legislature and judiciary in early Ohio, see William T. Utter, "Judicial Review in Early Ohio," Missis- sippi Valley Historical Review, Vol. XIV, pp. 3-26; also "Saint Tam- many in Ohio: A Study in Frontier Politics," Ibid., Vol. XV, pp. 321-340. 'M. M. Voorhies, "Judicial Functions and Powers of Congress," Virginia Law Review, III, pp. 632-641 (June, 1927). THE DOCTRINE OF JUDIcIAL REVIEW have not been affected by it.4 It could be used, however, in such a way as to seriously interfere with the work of the courts. In view of its comparatively limited use in the past, however, it would seem that the courts have little to fear in this connection.0 The most important point of contact existing at the present time between the legislature and the judiciary arises from the power of the courts to review the constitutionality of legislation and refuse to enforce that which they declare unconstitutional. The principle that an act of legislation contrary to the law under which a legislative body is organized is invalid was famil- iar to Americans long before the Constitution was adopted. Before the Revolution, colonial legislation was frequently stib- jeeted to review by the Privy Council,7 and both before and 4 The United States Senate has sat as a Court of Impeachment in the cases of the following accused officials: William Blount, a Senator of the United States from Tennessee: Blount expelled; charges dismissed on various grounds; Monday, Dec. 17, 1798, to Monday, January 14, 1799. John Pickering, Judge of the United States District Court for the District of New Hampshire; removed from office; Thursday, March 3, 1803, to Monday, March 12, 1804. Samuel Chase, Associate Justice of the Supreme Court of the United States; acquitted; Friday, November 30, 1804, to March 1, 1805. James H. Peck, Judge ot the United States District Court for the District of Missouri; acquitted; Monday, April 26, 1830, to Monday, January 31, 1831. West H. Humphreys, Judge of the United States District Court for the middle, eastern, and western Districts of Tennessee; removed from office; Wednesday, May 7, 1862, to Thursday, June 26, 1862. Andrew Johnson, President of the United States; acquitted; Fri- day, March 3, 1876, to Tuesday, August 1, 1876. William W. Belknap, Secretary of War; acquitted; Friday, March 3, 1876, to Tuesday, August 1, 1876. Charles Swayne, Judge of the United States District Court for the northern district of Florida; acquitted; Wednesday, Dec. 14, 1904, to Monday, Feb. 27, 1905. Robert W. Archbald, Associate Judge, United States Commerce Court; removed from office; Saturday, July 13, 1912, to Monday, Jan- uary 13, 1913. G. W. English, District Judge of Illinois; resigned; March 25, 1926, to Nov. 10, 1926. OR. Foster, Commentaries on the Constitution of the United States, pp. 505-53 (1895); D. S. Alexander, History and Procedureof the House of Representatives, Ch. 17; D. G. Thomas, "The Law of Impeachment in the United States," Amer. Pol. Sci. Rev., Vol. II, pp. 378-395 (May, 1908); A. Simpson, A treatise on Federal Impeachements (1917); Extracts from the Journal of the United States Senate in all Cases of Impeachment, 1798-1904, 62nd Cong., 2nd. Sess., Sen. Doe. No. 876 (1912). 'Before the Revolution, the validity of an act could be tested by an appeal to the King in Council to set aside the enactment of a KENTucKy LAw JouRNAw after the adoption of the federal Constitution, courts in a number of states had held state statutes in conflict with state constitutions to be invalid.8 Although neither the federal Constitution 9 nor any of the state constitutions expressly recognize or sanction this so-called colonial legislature, or by an appeal from the decision of a colonial court. These powers were not lightly considered. In fact, it has been estimated that some 8,563 acts of the American colonies were sub- mitted to the Privy Council, of which 469 were disallowed. Imper- fect records of the Privy Council make it impossible to determine how many of these were set aside because ol lack of authority on the part of the legislature to enact them, but enough is known to indicate that the proportion is large. (See Russel, The Review of Colonial Legis- lation by the King in Council; Andrews, British Committees, Commis- sions, and Councils of Trade.) In addition to appeals from the enact- ments of colonial legislatures to the Privy Council, there were also appeals from the decisions of colonial courts. Included in this group were three well known cases: (1) Winthrop v. Lechmere (1727-8), Thayer, Cases on Constitutional Law, I, 34; (2) Philips v. Savage (1738), Acts of the Privy Council, III, 432; (3) Clark v. Tousey (1745), Acts of the Privy Council, III, 540. The records of the Privy Council are imperfect in this connection also. In consequence it is almost im- possible to determine how many of the cases appealed to it from the American colonies, aggregating more than 260 in number, were based on an alleged conflict between a legislative enactment and a colonial charter. See A. M. Schlesinger, "Colonial Appeals to the Privy Coun- cil," Pol. Sci. Quarterly, Vol. 28, pp. 279, 433; Hazeltine, Appeals from the Colonial Courts to the King in Council, Annual Report of the American Historical Association for 1894, p. 299. See Lawrence B. Evans, Cases on Constitutional Law, pp. 253-255. sThe rights of the courts to invalidate acts of the legislature had been exercised in at least five states before the constitutional con- vention assembled. As early as 1780, the highest court of New Jersey asserted the right of the courts to determine the validity of acts of the legislature in the case of Holmes v. Walton. (See The American Historical Review, Vol. IV, 456.) In 1782, in the case of Commonwealth v. Caton, the same doctrine was asserted in Virginia; in 1784 in the case of Rutgers v. Waddington it was asserted in New York; in 1786 in the case of Trevett v. Weeden, decided in Rhode Island, a similar view was expressed (See Arnold, "History of Rhode Island, Vol. It, Ch. 24; Coxe, Judicial Power and Unconstitutional Legislation, p.