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Lest We
Be Marshall'd Judicial Powers and Politics in Ohio, 1806-1812 by Donald F. Melhorn, Jr 291 pp., 6 x 9, photographs, appendix, index Cloth 978-1-931968-01-0; $44.95 SALE: $17.98
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| Although the power
of American courts to determine the constitutionality of laws (the
power of judicial review) was sometimes disputed during the first
decades of the nation's history, Ohio was the only state where the
judiciary's claim to the power was challenged by subjecting judges who
had exercised it to prosecution by impeachment. George Tod and Calvin
Pease were accordingly tried by the Ohio Senate in 1809, charged with
subverting the state constitution by undertaking as judges to pass on
the constitutionality of an act of the legislature. With the legitimacy
of such undertakings the sole contested issue, both trials ended with
'guilty' votes of a majority of the senators, one short of the
two-thirds required for conviction. Frustrated by the inconclusiveness
of this result, opponents of the power invoked a novel interpretation
of the state constitution's tenure provision to purge Ohio courts of
all judges considered insufficiently deferential to the legislative
branch. Known as the Sweeping Resolution, this action raised the
broader constitutional issue of the judiciary's independence as a
branch of government.
The controversy lasted from 1806, when the first of the court decisions invalidating an act of the legislature was rendered, until 1812 when the Sweeping Resolution was effectively repealed. The constitutional issues were themselves addressed by political processes, in statewide elections as well as in the impeachment trials, and that they were concurrently subjects of prolonged and widely participatory public discourse, makes the story especially interesting. "Lest We Be Marshall'd" was the punch line of a toast given in 1808 before a large gathering of Cincinnati citizens celebrating the Fourth of July. This richly anecdotal story is set in a context of adventures and challenges of life in the legal profession of frontier Ohio and with warmly human portrayals of its principal characters. |
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Donald F. Melhorn, Jr. has been in practice with Marshall and Melhorn since 1964. He has also been a Lecturer in Law at the University of Toledo College of Law. He received his B.A. at Yale University and his LL.B. from Harvard Law School in 1960. |
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