University of Minnesota Law School Scholarship Repository Constitutional Commentary 1995 A Moot Court Exercise: Debating Judicial Review Prior to Marbury V. Madison. Donald F. Melhorn Jr. Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Melhorn Jr., Donald F., "A Moot Court Exercise: Debating Judicial Review Prior to Marbury V. Madison." (1995). Constitutional Commentary. 272. https://scholarship.law.umn.edu/concomm/272 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact
[email protected]. A MOOT COURT EXERCISE: DEBATING JUDICIAL REVIEW PRIOR TO MARBURY v. MADISON Donald F. Melhorn, Jr.* On August 31, 1797, student members of the Moot Court Society at Tapping Reeve's law school in Litchfield, Connecticut! suspended a rule requiring issues for argument to be put in hypo thetical cases, to permit their debating in the abstract a question which especially interested them: Have the judiciary a right to declare laws, which are unconstitutional, void? This moot court proceeding provides a rare pre-Marbury record of an actual ar gument and decision about what has come to be called the power of judicial review.z This article is the means of first publication of that record. Judicial review was a debatable but not yet widely debated constitutional question in 1797. How it was that American law students came to it then, as an issue for moot court argument, * © 1995 Donald F.