3.1.3 The Old South (1607-1787): Judicial Review and the Shaping of American Political Power


Commonwealth v. Caton – Virginia, 1782 (8 Va. 5); Bayard v. Singleton – North Carolina, 1787 (1 N.C. 5)

  • Most Americans today view the “checks and balances” system, dividing power between the executive, legislative and judicial branches of government with the judiciary having the final say as to whether acts of the other branches are valid, as the cornerstone of our government.  But the view immediately after the Revolution was quite different. 
  • Most Americans viewed the executive and judicial branches as tainted by their colonial association with the British crown.  They viewed legislatures as the main protectors of liberty and believed they should be the most powerful branch of government.  Many regarded judicial review of laws as a usurpation of power.
  • But by the early 1800s, the judiciary’s right to strike down unconstitutional laws was well established.  An 1803 U.S. Supreme Court case,  Marbury v. Madison, is widely cited as the case that established this rule – but in fact the movement toward the right of judicial  review of laws began in the state courts of the coastal Upper South.  Caton, in which Chancellor Wythe held that a criminal pardoning law was invalid because passed by only one house of the legislature, is the earliest important American case to strike down a statute:  the decision seems unexceptional today but it was bitterly criticized after it was decided.  Bayard is a less well-known but equally important example of early judicial review. 

Sketch of Chancellor George Wythe, by John Trumbull (1781) - courtesy Wikimedia Commons