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1794: Kamper v. Hawkins and the Role of the Judiciary

1794: Kamper v. Hawkins and the Role of the Judiciary

(p.38) IV. 1794: Kamper v. Hawkins and the Role of the Judiciary
A Community Built on Words
University of Chicago Press

The claim that courts have the power to disregard or annul a statute if, in the court's opinion, it violates the Constitution was flatly contrary to mainstream English legal thought in the late eighteenth century. In contrast, during the last decade of the eighteenth century American lawyers, judges, and (what is most remarkable) legislators alike came to agree, almost universally, that some form of judicial review was a feature of the American constitutional order. By the time John Marshall had the opportunity to discuss the issue in Marbury v. Madison, the issue was essentially settled and Marshall's discussion of it evoked virtually no attention. (The modern legend that Marbury invented judicial review is simply that—a legend.) Marshall, to his credit, did not pretend that he was making a radical or innovative claim. The issue, he wrote, while “deeply interesting to the United States,” is “happily, not of an intricacy proportioned to its interest.” The issue, indeed, had arisen earlier in his home state of Virginia, and in one instance, the 1794 case of Kamper v. Hawkins, an able court gave it considered attention, with interesting results.

Keywords:   Kamper v. Hawkins, judiciary, Constitution, judicial review, constitutional order, Constitution

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