The Evolution of Judicial Review Part One: 1775-1787

Part One: The Pre-Constitutional Convention Period 1775-1787 

In the 247 years since the Continental Congress adopted the Declaration of Independence, the several states have operated under three forms of governments. First, from July 4, 1776, until February 28, 1781. The states operated as thirteen independent nations who sent delegates to the Continental Congress for the purposes of developing a common policy on matters of mutual concerns. Second, from March 1, 1781, to June 21, 1788, the thirteen independent states operated under a decentralized confederal system under the Articles of Confederation which reserved the majority of the power to the individual states. With the entry in to force of the Constitution on June 21, 1788, the system of government was transformed into the dual federalist system that exists in slightly altered form today.

Benjamin Franklin proposed the first version of a confederal form of government to the Second Continental Congress on July 21, 1775. [ 1] Contemporaneous with the resolution of independence (Lee Resolution) presented by Richard Henry Lee on June 7, 1776. The Second Continental Congress appointed a committee of thirteen members to study and prepare a draft of a confederation agreement.[2] Given the nature of the task, the Continental Congress assigned a delegate from each colony to the committee so that each of the colonies giving each colony a voice in the construction of the agreement. Article XIII, paragraph 2 of the proposed Articles of Confederation reported to Continental Congress sitting as a committee of the whole and transmitted to the States for ratification required the accession of all thirteen States before the confederal system would enter into force.  The ratification process began on November 17, 1777, when the Congress transmitted the proposed to the colonies for approval.[3] The exigencies presented by the American Revolution prevented a rapid process. The Articles of Confederation did not enter into until March 1, 1781 when the delegation of Maryland to the Continental Congress subscribed to the document.[4]  Under the confederal system established by the Articles of Confederation, the several States retained their status as thirteen independent sovereign nations who collaborated on issues of mutual concern by ceding their authority on military and foreign policy matters to the Congress of the Confederation (the United States in Congress assembled) as provided by the Articles of Confederation of 1781, Article VI, and Article IX respectively.  The construction of the Articles of Confederation and the political organ created under its terms gave rise to several defects, which ultimately prompted the convening of the Annapolis Convention of 1786 and the Constitutional Convention of 1787.

Many of the delegates to Annapolis Convention of 1786 and the Constitutional Convention of 1787 agreed on the need for a multi-tiered national judiciary composed of courts possessing original and appellate jurisdiction.  However, they were divided on several technical questions pertaining to the formation of the new judiciary, and the modifications to the underlying legal system necessary to create the new system. Among the questions that caused the most division were questions related to three subjects: First, the delegates disagreed on the manner of judicial appointments; Second, the members held divergent views on the apportionment of jurisdiction among the original and appellate courts; Third, although the representatives to the Convention acknowledged the need for some scheme that would ensure the supremacy of national laws that would render the states subordinate to the national government in all matters of national concern. The states present disagreed on the extent to which such a clause should be extended.

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[1] Dr. Franklin’s proposal for confederation was printed in 2 J OF THE. CONT’L CONG. 1774-1789, 195 (1775), (Worthington Chauncey Ford ed. 1905) available at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc00267))

[2] The resolve to draft a confederation agreement was printed 5 J. OF THE CONT’L CONG. 1774-1789, 425 (1776), (Worthington Chauncey Ford ed. 1906) available at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc0057))

[3] The record of transmittal was printed in 9 J. OF THE CONT’L CONG. 1774-1789, 935 (1777), (Worthington Chauncey Ford ed. 1907) available at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc00941))

[4] The record of Maryland’s subscription to the Articles of Confederation was printed in 19 J. OF THE CONT’L CONG. 1774-1789, 231-214, (1781) https://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc00941))