Calder vs. Bull (August, 1798, 3 Dallas, 386-401), in which, however, the Court questioned its power to annul legislation. Cooper vs. Telfair (February, 1800, 4 Dallas, 14). These last two cases and the Hayburn Case had been decided by justices of the Supreme Court.
Whittington vs. Polk (Maryland, April, 1802, 1 Harris and Johnson, 236-52). Marshall surely was informed of this case by Chase who, as Chief Justice of Maryland, decided it. The report, however, was not published until 1821. (See McLaughlin: The Courts, the Constitution, and Parties, 20-23.) In his opinion in this case Justice Chase employed precisely the same reasoning used by Marshall in Marbury vs. Madison to show the power of courts to declare invalid legislative acts that violate the Constitution.
The old Court of Appeals, under the Articles of Confederation, denounced as unconstitutional the law that assigned circuit duties to the judges of that appellate tribunal; and this was cited by Thomas Morris of New York and by John Stanley of South Carolina in the judiciary debate of 1802.[1515]
As to the statement of Chief Justice, later Governor Thomas Hutchinson of Massachusetts, in 1765, and the ancient British precedents, cited by Robert Ludlow Fowler in the American Law Review (xxix, 711-25), it is positive that Marshall never had an intimation that any such pronouncements ever had been made.
Neither, in all likelihood, had Marshall known of the highly advertised case of Rutgers vs. Waddington, decided by a New York justice of the peace in 1784 (see American Law Review, xix, 180), and the case of Bowman vs. Middleton (South Carolina, May, 1792, 1 Bay, 252-55) which was not printed until 1809. (See McLaughlin, 25-26.) The same may be said of the North Carolina controversy, State vs. ——, decided in April, 1794 (1 Haywood, 28-40), and of Lindsay et al vs. Commissioners (South Carolina, October, 1796, 2 Bay, 38-62), the report of which was not printed until 1811.
For a scholarly treatment of the matter from an historical and legally professional point of view, see Doctrine of Judicial Review by Professor Edward S. Corwin of the Department of History and Politics, Princeton University; also The Courts, the Constitution, and Parties, by Professor Andrew C. McLaughlin of the Department of History, University of Chicago. The discussion by these scholars is thorough. All cases are critically examined, and they omit only the political exigency that forced Marshall's opinion in Marbury vs. Madison.
The student should also consult the paper of William M. Meigs, "The Relation of the Judiciary to the Constitution," in the American Law Review (xix, 175-203), and that of Frank E. Melvin, "The Judicial Bulwark of the Constitution," in the American Political Science Review (viii, 167-203).
Professor Charles A. Beard's The Supreme Court and the Constitution contains trustworthy information not readily accessible elsewhere, as well as sound comment upon the whole subject.
Judicial Power and Unconstitutional Legislation, by Brinton Coxe, although published in 1893, is still highly valuable. And Power of Federal Judiciary over Legislation, by J. Hampden Dougherty, will be profitable to the student.
Marbury vs. Madison is attacked ably, if petulantly, by Dean Trickett, "Judicial Nullification of Acts of Congress," in the North American Review (clxxxv, 848 et seq.), and also by James B. McDonough, "The Alleged Usurpation of Power by the Federal Courts," in the American Law Review (xlvi, 45-59). An ingenious and comparatively recent dissent from the theory of judicial supervision of legislation is the argument of Chief Justice Walter Clark of the Supreme Court of North Carolina, "Government by Judges." (See Senate Document No. 610, 63d Congress, 2d Session.)