Plaintiffs
James Eakin, et al.
Defendants
Daniel Raub, et al.
Plaintiffs' Claim
That a state statute imposing a new period of limitations in which to bring aclaim, as applied to bar plaintiff's claim, violated the state constitution,and that the Pennsylvania Supreme Court had the power to declare the statutevoid.
Chief Lawyer for Plaintiffs
B. Tilghman
Chief Defense Lawyer
Joseph Hemphill
Justices for the Court
Tilghman, Duncan
Justices Dissenting
John B. Gibson
Place
Philadelphia, Pennsylvania
Date of Decision
16 April 1825
Decision
That the state supreme court has the power to review legislative acts and, ifcontrary to the state constitution, declare such acts void.
Significance
As an historical matter, the actual decision of the Pennsylvania Supreme Court in Eakin v. Raub is of little importance. Although the case involveda major issue--the power of the court to declare acts contrary to the stateconstitution void--the two justices in the majority gave this issue short shrift. However, Justice Gibson's dissenting opinion is widely regarded as beingthe most effective refutation of the theory of judicial review, and it is this dissenting opinion which makes Eakin noteworthy.
In 1803, the U.S. Supreme Court decided the case of Marbury v. Madison, almost universally regarded as the most important court decision in American history. In Marbury, Chief Justice John Marshall established the theory of judicial review as a matter of federal law, concluding that the Supreme Court has the power to review laws enacted by Congress and declare legislative acts which violate the U.S. Constitution void, even though the judiciaryis granted no such express power in the Constitution. While today the power of judicial review is accepted unquestioningly, such was not always the case.Indeed, after the Court's decision in Marbury such eminent leaders asThomas Jefferson, Andrew Jackson, and Abraham Lincoln all expressed doubt about the validity of judicial review and the power of the courts to declare legislative acts void. In 1825, the Pennsylvania Supreme Court, in Eakin v. Raub, accepted Justice Marshall's position in Marbury as applied tothe power of the state courts to declare legislative acts transgressing thestate constitution void.
The facts of Eakin, and the ultimate issue in that case from the parties' perspectives, are relatively uninteresting and of little import. Furthermore, the opinion of Chief Justice Tilghman, accepting Chief Justice Marshall's view of judicial review, adds little to the historical support for the power of judicial review. Much more important, however, was the dissenting opinion of Justice John Gibson, which is widely regarded as the most effective attack on Chief Justice Marshall's Marbury opinion and his theory of judicial review ever authored. In an opinion often cited by opponents of the theory of judicial review, Justice Gibson attempted, and in many respects succeeded, to offer a point-by-point refutation of Marshall's decision.
Marshall v. Gibson: Head to Head
Justice Marshall offered a number of justifications for the conclusion that the judiciary has the power to declare void legislative acts which are contrary to the Constitution, despite the fact that the Constitution provides no such explicit power. Justice Marshall first supported the theory of judicial review by reasoning that the power of judicial review is necessary to preserve awritten constitution as the law which is superior to all other legislative acts. In Marshall's view, if a court cannot strike down a law which violates the Constitution, then the legislature may, in effect, amend or repeal the Constitution by simply passing laws, rather than formerly amending the Constitution. Justice Gibson countered that a constitution may be better preserved bythe citizens of the state, and not the courts. He reasoned that "it rests with the people, in whom full and sovereign power resides to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act." He reasoned that any powers not expressly granted in a constitution are reserved to the people, who are the ultimate sovereigns in a democratic regime.Thus, he concluded, while it may be wise to allow the courts to exercise thispower, the people, in forming the constitution, did not do so, and the courts may not do so on their own.
Justice Marshall next justified his theory of judicial review on the argumentthat the legislature only has authority granted to it by the Constitution, and thus because the legislature has no authority to pass a law which is prohibited by the Constitution, the law is simply void of itself, even without a court declaring it so. Again, Justice Gibson countered this reasoning. In Justice Gibson's view, this merely elevated the judiciary above the legislature,although it does not necessarily follow that a court's opinion on the matteris more correct than the legislature's: "But it will not be pretended that the legislature has not at least an equal right with the judiciary to put a construction on the constitution; nor that either of them is infallible; nor that either ought to be required to surrender its judgment to the other." Yet, in Justice Gibson's view, judicial review requires just that; the legislaturemust surrender its judgment to the judiciary.
Justice Marshall, in his Marbury opinion, also justified the power ofjudicial review on the ground that, if a court enforces an unconstitutional law, then the court itself is committing its own act in violation of the Constitution. Justice Gibson, in his Eakin dissent, concluded that this wasmerely a reformulation of Marshall's previous argument. Justice Gibson concluded that Marshall's argument follows only if it is assumed that the judiciary has authority over the legislature to declare laws unconstitutional. If itdoes not, as Gibson thought, then a court is making no affirmative act when it does not strike down an unconstitutional law.
Justice Marshall's fourth asserted reason for concluding that a court has thepower to strike down unconstitutional laws was that judges are required by the constitution to take an oath supporting the Constitution. Justice Gibson,however, found this reasoning to be circular. In his view, this oath requireda judge to uphold the Constitution in the exercise of his ordinary judicialpowers. Only if it is assumed that the ordinary judicial power includes the power of judicial review does the oath to uphold the Constitution require a judge to declare an unconstitutional law void. However, as Justice Gibson noted, the foundation of this argument is nothing more than "an assumption of thewhole ground in dispute," that is, the argument assumed its own conclusion.
Justice Gibson concluded by reasoning that the Constitution grants to the courts only the "judicial power," but does not define what is meant by that phrase. However, he disagreed with the assumption that the judicial power includes the power to declare unconstitutional laws void. Rather, in his view, basedon the common law development of the courts, "[i]t is the business of the judiciary to interpret the laws, not scan the authority of the lawgiver." Thus,he concluded, "it rests with the people, in whom full and absolute sovereignpower resides, to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act." Ultimately, Chief Justice Marshall'sview as expressed in Marbury carried the day, and it is virtually unquestioned that the courts have the power to declare laws contrary to the Constitution void. Yet, Justice Gibson's opinion remains a stark reminder of the somewhat tenuous foundation upon which this power is based, and reveals some of the political and judicial philosophies underlying Marshall's decision in Marbury, not the least of which was to "flex the Court's muscle." Thus,as Charles Haines observed on page 284 of his work on judicial supremacy, "[a]ny one who considers the opinion [of Judge Gibson] can readily perceive that reason and logic had comparatively little weight with those who resolutelyset about to make judicial review a part of the American political system."
Related Cases
James Eakin, et al.
Defendants
Daniel Raub, et al.
Plaintiffs' Claim
That a state statute imposing a new period of limitations in which to bring aclaim, as applied to bar plaintiff's claim, violated the state constitution,and that the Pennsylvania Supreme Court had the power to declare the statutevoid.
Chief Lawyer for Plaintiffs
B. Tilghman
Chief Defense Lawyer
Joseph Hemphill
Justices for the Court
Tilghman, Duncan
Justices Dissenting
John B. Gibson
Place
Philadelphia, Pennsylvania
Date of Decision
16 April 1825
Decision
That the state supreme court has the power to review legislative acts and, ifcontrary to the state constitution, declare such acts void.
Significance
As an historical matter, the actual decision of the Pennsylvania Supreme Court in Eakin v. Raub is of little importance. Although the case involveda major issue--the power of the court to declare acts contrary to the stateconstitution void--the two justices in the majority gave this issue short shrift. However, Justice Gibson's dissenting opinion is widely regarded as beingthe most effective refutation of the theory of judicial review, and it is this dissenting opinion which makes Eakin noteworthy.
In 1803, the U.S. Supreme Court decided the case of Marbury v. Madison, almost universally regarded as the most important court decision in American history. In Marbury, Chief Justice John Marshall established the theory of judicial review as a matter of federal law, concluding that the Supreme Court has the power to review laws enacted by Congress and declare legislative acts which violate the U.S. Constitution void, even though the judiciaryis granted no such express power in the Constitution. While today the power of judicial review is accepted unquestioningly, such was not always the case.Indeed, after the Court's decision in Marbury such eminent leaders asThomas Jefferson, Andrew Jackson, and Abraham Lincoln all expressed doubt about the validity of judicial review and the power of the courts to declare legislative acts void. In 1825, the Pennsylvania Supreme Court, in Eakin v. Raub, accepted Justice Marshall's position in Marbury as applied tothe power of the state courts to declare legislative acts transgressing thestate constitution void.
The facts of Eakin, and the ultimate issue in that case from the parties' perspectives, are relatively uninteresting and of little import. Furthermore, the opinion of Chief Justice Tilghman, accepting Chief Justice Marshall's view of judicial review, adds little to the historical support for the power of judicial review. Much more important, however, was the dissenting opinion of Justice John Gibson, which is widely regarded as the most effective attack on Chief Justice Marshall's Marbury opinion and his theory of judicial review ever authored. In an opinion often cited by opponents of the theory of judicial review, Justice Gibson attempted, and in many respects succeeded, to offer a point-by-point refutation of Marshall's decision.
Marshall v. Gibson: Head to Head
Justice Marshall offered a number of justifications for the conclusion that the judiciary has the power to declare void legislative acts which are contrary to the Constitution, despite the fact that the Constitution provides no such explicit power. Justice Marshall first supported the theory of judicial review by reasoning that the power of judicial review is necessary to preserve awritten constitution as the law which is superior to all other legislative acts. In Marshall's view, if a court cannot strike down a law which violates the Constitution, then the legislature may, in effect, amend or repeal the Constitution by simply passing laws, rather than formerly amending the Constitution. Justice Gibson countered that a constitution may be better preserved bythe citizens of the state, and not the courts. He reasoned that "it rests with the people, in whom full and sovereign power resides to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act." He reasoned that any powers not expressly granted in a constitution are reserved to the people, who are the ultimate sovereigns in a democratic regime.Thus, he concluded, while it may be wise to allow the courts to exercise thispower, the people, in forming the constitution, did not do so, and the courts may not do so on their own.
Justice Marshall next justified his theory of judicial review on the argumentthat the legislature only has authority granted to it by the Constitution, and thus because the legislature has no authority to pass a law which is prohibited by the Constitution, the law is simply void of itself, even without a court declaring it so. Again, Justice Gibson countered this reasoning. In Justice Gibson's view, this merely elevated the judiciary above the legislature,although it does not necessarily follow that a court's opinion on the matteris more correct than the legislature's: "But it will not be pretended that the legislature has not at least an equal right with the judiciary to put a construction on the constitution; nor that either of them is infallible; nor that either ought to be required to surrender its judgment to the other." Yet, in Justice Gibson's view, judicial review requires just that; the legislaturemust surrender its judgment to the judiciary.
Justice Marshall, in his Marbury opinion, also justified the power ofjudicial review on the ground that, if a court enforces an unconstitutional law, then the court itself is committing its own act in violation of the Constitution. Justice Gibson, in his Eakin dissent, concluded that this wasmerely a reformulation of Marshall's previous argument. Justice Gibson concluded that Marshall's argument follows only if it is assumed that the judiciary has authority over the legislature to declare laws unconstitutional. If itdoes not, as Gibson thought, then a court is making no affirmative act when it does not strike down an unconstitutional law.
Justice Marshall's fourth asserted reason for concluding that a court has thepower to strike down unconstitutional laws was that judges are required by the constitution to take an oath supporting the Constitution. Justice Gibson,however, found this reasoning to be circular. In his view, this oath requireda judge to uphold the Constitution in the exercise of his ordinary judicialpowers. Only if it is assumed that the ordinary judicial power includes the power of judicial review does the oath to uphold the Constitution require a judge to declare an unconstitutional law void. However, as Justice Gibson noted, the foundation of this argument is nothing more than "an assumption of thewhole ground in dispute," that is, the argument assumed its own conclusion.
Justice Gibson concluded by reasoning that the Constitution grants to the courts only the "judicial power," but does not define what is meant by that phrase. However, he disagreed with the assumption that the judicial power includes the power to declare unconstitutional laws void. Rather, in his view, basedon the common law development of the courts, "[i]t is the business of the judiciary to interpret the laws, not scan the authority of the lawgiver." Thus,he concluded, "it rests with the people, in whom full and absolute sovereignpower resides, to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act." Ultimately, Chief Justice Marshall'sview as expressed in Marbury carried the day, and it is virtually unquestioned that the courts have the power to declare laws contrary to the Constitution void. Yet, Justice Gibson's opinion remains a stark reminder of the somewhat tenuous foundation upon which this power is based, and reveals some of the political and judicial philosophies underlying Marshall's decision in Marbury, not the least of which was to "flex the Court's muscle." Thus,as Charles Haines observed on page 284 of his work on judicial supremacy, "[a]ny one who considers the opinion [of Judge Gibson] can readily perceive that reason and logic had comparatively little weight with those who resolutelyset about to make judicial review a part of the American political system."
Related Cases
- Marbury v. Madison, 5 U.S. 137 (1803).
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