Friday Fun
An old standby of mine, some trivia… When, since the passage of the 17th Amendment, has the House changed hands but not the Senate (two right answers)? What Presidents were not sworn in? Finally, in what case, prior to Marbury, did the concept of Judicial review appear? (may be several, I only know of one).
November 11th, 2006 at 9:55 am
Oh hell. I knew the answer to the Marbury question and now I can’t think of it. How ’bout a hint? It was in 1801 or 1802, wasn’t it?
ok. I give up.
November 11th, 2006 at 4:54 pm
I don’t have a particular case to cite, but what I recall from undergraduate coursework is that judicial review of the constitutionality of state laws was pretty well established prior to Marbury. The import of Marbury was to extend that to review of an act of Congress.
November 11th, 2006 at 9:10 pm
As for the Presidents…
I’ve found claims that three did not swear.
The best-documented one is Franklin Pierce, while John Tyler and Herbert Hoover were also mentioned as in that category. Strangely, Pierce is the only one that I can find a direct reference (on Wikipedia) with respect to not swearing the oath.
Curiously, Richard Nixon would have been justified in not swearing (for the same reason as Pierce), but he chose to swear.
Everyone else: what did these men do instead of swear the oath, and why?
November 12th, 2006 at 1:19 am
Oh come on, is this about swearing v. “affirming?” Lame question; overtechnical.
November 13th, 2006 at 3:21 pm
Regarding earlier examples of judicial review, there were a bevy of state cases in the late 18th century, the most famous coming from NH. See Philip Hamburger, 72 Geo. Wash. L. Rev. 1, Marbury and Its Legacy: A Symposium to Mark the 200th Anniversary of Marbury v. Madison, LAW AND JUDICIAL DUTY (2003) and succeeding articles from the same issue.
November 13th, 2006 at 4:36 pm
Hayburns Case (1792): Circuit court judges disapproved of Congress assigning them as arbitrators in a case, but handled their “disapproval” by noting that they were not acting as judges when arbitrating.
Hylton v. U.S. (1796): Upheld a carriage tax. The Court found a law to be constitutional–but the Court asserted that its opinion mattered. Why should Congress care what the Court thought? This is the first Federal Judicial Review.
Ware v. Hylton (1796) & Calder v. Bull (1798): Court struck down state legislation in Ware and narrowly tailored a law in Calder, reviewing state law.
November 13th, 2006 at 11:50 pm
I was thinking of Chisolm v. Georgia (1795) and, more interestly, Res Publica v. De Longchamps, 1 U.S. 111 (1784 — preconstitution). I fully admit to having not read either case in full, but relying on law review descriptions - I was doing a quick trivia. I intend to read Longchamps just for the interest into seeing how the Articles of Confederation worked as a foundational document.
November 14th, 2006 at 1:23 am
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) is a fascinating case, leading directly its overruling by the 11th amendment, and one of the first important cases decided by SCOTUS. However, it didn’t involve judicial review of a statute on constitutional grounds - it’s a sovereign immunity question. Ditto for Longchamps. Longchamps is also PA Supreme Court decision, like most of the first two volumes of the US Reports, and not a SCOTUS decision (as can also be inferred from the dates).
Thanks to Mr. Richie for summarizing the early judicial review cases, as I was too lazy to do.
November 14th, 2006 at 1:32 am
To amend, Longchamps isn’t really a sovereign immunity case. It’s a case where a dude assaulted the French ambassador and the ambassador wanted him shipped off to France for punishment. The court said they couldn’t do that.
I’ll also warn that Chisholm is a tough read, since it’s presented seriatim and not in the conventional format for a case (which would be adopted shortly thereafter).
November 14th, 2006 at 1:53 am
Ubertrout - thank you very much for the links! While you are still around, one thing I wondered after seeing the reference was whether Res Publica refered to the Confederation or the French Republic? If the latter, do you know how the nation was referred to in case names prior to the U.S., if there are any such precedents?
November 14th, 2006 at 1:56 am
And after thinking about that for half a second, I remember that France was still a monarchy at that point. Do you know if the res publica referred to PA or the CSA?
November 14th, 2006 at 10:32 am
Actually, I’m pretty sure that Respublica refers to the state of Pennsylvania, either referring to the republic/commonwealth of PA (commonwealth is just a translation of republic), or more likely being a literal translation of res publica and meaning “the people.” (yes, my latin is probably a bit off, but it’s close enough for government work).
Since its a PA case, I’d assume by default it refers to PA. This is bolstered by the fact that the Articles of Confederation were considered more a treaty than a republican form of government.
I’d also note, as an aside, that inclusion in the early US reports of a state case did not necessarily mean that it had national importance…Dallas wanted to sell his reporters, and there was more demand for state cases. For a really cool (in a lawnerd way) article on this, see Craig Joyce, THE RISE OF THE SUPREME COURT REPORTER: AN INSTITUTIONAL PERSPECTIVE ON MARSHALL COURT ASCENDANCY, 83 Mich. L. Rev. 1291
(1985)