The framers of the first state constitutions established a system in which the representatives of the people, embodied in their legislatures, were to be supreme within governments. With only two partial exceptions, the early constitutions imposed no formal check on the power of legislatures to make law. But these representative bodies were not, for the most part, regarded as sovereign. Rather, most Americans believed that the sovereign people themselves would supervise the conduct of their representatives.1 Constitutional restrictions would be enforced against legislatures “politically” through a variety of forms of popular action, but most especially by means of the frequent (annual) elections almost all the first constitutions required for their lower houses. Legislatures would be held to constitutional standards as popular opinion interpreted those. Under this system, the people would be entirely free to enact (through their legislatures) the laws by which they wished to govern themselves. Whenever they came to believe that their legislators had overstepped constitutional bounds in passing a particular statute, they possessed the plenary power to replace them with representatives who would more faithfully adhere to constitutional standards, and repeal offending legislation.

By the eve of the Federal Convention, judicial review had laid down solid foundations in New Jersey, New Hampshire, and North Carolina. And even though further development of the practice was thwarted for several decades in New York, and for more than half a century in Rhode Island, the case of Trevett v. Weeden was nevertheless being cited as a precedent for judicial review beyond Rhode Island’s borders. It was mentioned with approval, for example, at the Federal Convention, where the Rhode Island legislature was condemned for “displacing” the judges who had engaged in it.1

The years 1786–87 marked a decisive turning point in the history of judicial review. Of the half dozen legal disputes that historians normally place on the list of early judicial review precedents down to the Federal Convention, fully half arose during the years 1786–1787.1 During these two years, in a variety of cases in three different states, lawyers argued on behalf of their clients that a court must declare a state statute not to be law, and in every case, the judges obliged. The North Carolina case of Bayard v. Singleton was one of these.

Commonwealth v. Caton (The Case of the Prisoners) also emerged from the turmoil of the Revolutionary war. During the spring and summer of 1781, the British army, which had operated in Virginia earlier in the war, invaded the state again. General William Phillips landed his troops, and marched to Petersburg, conducting raids as far west as Amelia. Benedict Arnold, having deserted the patriot cause and now serving as a British general, moved his troops up the James River, leaving a trail of destruction. General Cornwallis marched his large army into Virginia from the Carolinas, and dispatched Lieutenant Colonel Banastre Tarleton to try to capture Virginia’s legislature along with its governor, and they chased the governor and members of the General Assembly across the mountains, capturing seven. Thomas Jefferson, then serving his last months as Virginia’s governor narrowly escaped by fleeing from Monticello to his plantation at Poplar Forest in southwest Virginia.

The British Army invaded New York City during the late summer of 1776 and occupied it until the very end of the Revolutionary war in 1783. At various times, the British mounted armed forays into New Jersey just across the river. For the balance of the war, New Jersey remained on the front lines.

In the years immediately following the end of the Revolutionary War, the united states experienced a severe economic downturn, brought on by a variety of causes, that included British commercial retaliation, a collapse in domestic demand following the end of fighting, the flight of hard currency abroad, and a large increase in state taxes to pay off the war debt.1 “Per capita gross national product plummeted nearly 50 percent in the fifteen years after Americans declared independence.”2 In response to these hard economic times, a number of states enacted debtor relief legislation of various kinds, which became, along with anti-Loyalist laws, the second major impetus for the further development of judicial review.

American colonial governments, which were established over the course of the seventeenth and early eighteenth centuries, took, as is well known, one of three basic forms. They were organized either as royal, proprietary, or corporate colonies. By the middle of the eighteenth century, the majority of colonies (eight of the thirteen) had been taken under the direct rule of the British Monarch. Three colonies remained proprietorships, Maryland, Pennsylvania, and Delaware, which “ntil the Revolution … had [a separate legislature but] the same governor as Pennsylvania.”1 Only two, Connecticut and Rhode Island, retained their status as corporate colonies.

An “upper house” established as a check on a “lower” one, with members enjoying a longer tenure in office, and elected under more restrictive property-owning requirements, was not without precedent among the constitutions adopted in 1776. Entirely absent from the permanent frames of government adopted until that time, however, was any authority vested in a body outside the legislature to review and prevent its bills from becoming law. There had been some discussion in a number of states of restoring to governors a veto over legislative enactments, but none of the congresses and conventions, save that establishing South Carolina’s temporary constitution of 1776, had decided to do so.

Like the two earlier cases, Rutgers v. Waddington grew directly out of the events of the Revolutionary war. After being driven out of Boston in the spring of 1776, the British army adapted its strategy in America, determining to invade and occupy New York City, preparing the groundwork for an attempt to drive a military wedge between the New England colonies, parts of New York and the remainder of the country. Following a series of American defeats in the late summer and early fall of 1776, the British Army took possession of New York City and its immediate surroundings, where it remained for the next seven years, only departing in November, 1783 after the Definitive Treaty of Peace had been signed. Great numbers of Patriots fled the British occupation, abandoning the properties they owned in the city.

The economic crisis that crippled New Hampshire in 1786 also beset other New England states. Throughout the region during the summer and fall of 1786, the economic hard times led to political and constitutional turmoil that took partially different forms in each state. In Massachusetts, a legislature that was almost completely unresponsive to popular petitions for relief, contributed to setting off a sizeable armed (Shay’s) rebellion in western counties beginning in the late summer. In New Hampshire, where the legislature had been somewhat more responsive to popular outcries for relief, a smaller armed uprising was quickly put down, and a bridgehead against unconstrained majoritarian politics was established in the courts. In Rhode Island, as in other states, small farmers, who commonly needed to borrow to plant new crops, felt the burden of increased taxation to pay off the war debt especially acutely.

Most historians trace the immediate origins of American judicial review to a series of half a dozen cases that arose in half a dozen states during the 1780s. In these cases, lawyers began to argue that such and such a state statute was unconstitutional, and that the judges should not consider it law in reaching their decisions. In several of these cases, the judges agreed, and proceeded to take what a number of contemporaries regarded as the unprecedented step of “dispensing with”