"Lest we be marshall'd": judicial powers and politics in Ohio, 1806-1812

Abstract

The power of judicial review -- the power of courts to pass on the constitutionality of laws -- was widely disputed during the first decades of the nation's history. In several states, judges who undertook to exercise the power were threatened with impeachment; in Ohio that threat was carried out. Tried before the state senate in 1809, Judges George Tod and Calvin Pease were each charged with subverting the state constitution by undertaking to judge the constitutionality of an act of the legislature. The power of state courts to adjudicate such questions was the sole issue in these prosecutions. A majority of the Ohio Senate voted the judges guilty, but the vote was one short of two-thirds required for conviction. Frustrated by inconclusiveness of this verdict, opponents of the power invoked a novel interpretation of the Ohio constitution's provision for judicial tenure to purge the courts of judges considered insufficiently deferential to the legislative branch. Implemented by a measure which became infamous as the Resolution, this action raised the broader issue of the judiciary's constitutional independence as a branch of state government. The controversy extended from 1806, when the first of the court decisions was rendered, until 1812 when the Sweeping Resolution was effectively repealed. Throughout this period questions with respect to the state judiciary's constitutional powers and status were issues in state-wide elections, and subjects of political conflict and contentious public discourse.