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The common perception is that John Marshall wrote on a clean slate in crafting judicial review in Marbury v. Madison. He didn’t. The great chief justice was on familiar ground when he pronounced that it “is of the very essence of judicial duty” to determine when “the constitution, and not such ordinary act [of the legislature], must govern the case to which they both apply.” Due primarily to Marshall’s law professor, George Wythe, judicial review was an accepted part of the Virginian constitutional landscape by the turn of the 19th century. Twenty-one years before Marbury, Wythe, in Commonwealth v. Caton, had embraced judicial review under the Virginia Constitution, declaring it the job of the judiciary to “peaceably establish[]” the “ boundaries of authority” exercised by the other branches of government. George Wythe (pronounced “with”) is properly renowned as a seminal influence in legal education; less well known is his legacy as a jurist and statesman. A signer of the Declaration of Independence who was generally regarded as the finest lawyer in Colonial Virginia, Wythe was his former student’s natural choice when then-Gov. Thomas Jefferson established the position of “Professor of Law and Police” at the College of William and Mary in 1779. The second law professor in the English-speaking world after Oxford’s William Blackstone, Wythe devised a curriculum of lectures, guided readings, moot courts, and mock legislatures that remains largely intact today. A REVOLUTIONARY CASE The events that led to Caton were more consequential than the petty political intrigues behind Marbury. Southeastern Virginia was infested with secret Tories throughout the Revolution. When, in the summer of 1781, British forces led by Generals Benedict Arnold and Charles Cornwallis overran the area, John Caton and others revealed themselves. That turned out to be a dangerous move, especially after George Washington defeated the British army at Yorktown. Tried and sentenced to be hanged, Caton petitioned the Virginia Legislature for clemency. Virginia’s Treason Act provided for pardons only by the consent of both houses of the Legislature, while the Virginia Constitution appeared to limit any statutorily created pardon powers to the House of Delegates alone. The House granted Caton’s petition, but the Virginia Senate rejected it. On the day Caton was to be executed (June 15, 1782), his lawyer presented the House’s pardoning resolution to the sheriff, who stayed the hanging until October, when the general court would next convene. That court subsequently certified to the Virginia Court of Appeals � on which George Wythe sat � the question whether a court could nullify a statute that contradicted the constitution. The courtroom was packed for the arguments on what Richmond newspapers dubbed “the great constitutional question.” Attorney General Edmund Randolph, who may have studied under Wythe, argued that the Treason Act did not violate the constitution, and also claimed that “every law against the constitution may be declared void” by the court. St. George Tucker, a student of Wythe’s who later replaced his teacher at William and Mary, argued as a court-invited amicus that the constitution “is the touchstone by which every Act of the Legislature is to be tried” and that the “Judiciary Department is constituted the Guardian” of the constitution. The judges announced their individual decisions two days later (almost certainly with John Marshall in the audience, at both proceedings). According to Wythe: “[I]f the whole legislature, an event to be deprecated, should attempt to over-leap the bounds, prescribed by them by the people, I, in administering the public justice of the country, will meet the united powers, at my seat in this tribunal; and pointing to the constitution, will say to them here is the limit of your authority; and hither shall you go, but no further.” LAW AND POLITICS Though Wythe embraced judicial review, he ultimately construed the constitutional provision to require bicameral pardons. Thus, any backlash Wythe’s opinion may have created was muted because it did not free Caton, which the Virginia Assembly soon did, citing the “great contrariety of opinion . . . among the best and wisest of men” on the constitutional question. (Similarly, in Marbury, Marshall was able to establish judicial review while avoiding a head-on collision with President Thomas Jefferson. Marshall established judicial review without issuing a writ of mandamus demanding that William Marbury’s commission be delivered.) In the years that followed Caton, Wythe’s opinion was cemented in Virginia. In 1793, Chancellors St. George Tucker and Spencer Roane (a classmate of Marshall’s in Wythe’s first class of students � along with Bushrod Washington, who later served on the Marbury Court) led the unanimous adoption of judicial review in Kamper v. Hawkins. Significantly, in Kamper, the court of appeals overturned an unconstitutional statute for the first time. Wythe’s Caton reasoning also influenced the debates that formed the U.S. Constitution. Wythe was one of seven delegates appointed to represent Virginia at the Constitutional Convention of 1787, and the Virginia Plan, which was chosen as the Constitution’s model, was presented by Randolph. Wythe also chaired the Committee of the Whole at the Virginia Ratifying Convention in 1788, many of whose delegates were his former students. Every one of the several delegates at the ratifying convention who addressed the question, including then-Gov. Randolph, agreed that judicial review was contemplated under the proposed Constitution. Indeed, Delegate John Marshall stated, “If Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the Judges as an infringement of the Constitution which they are to guard. . . . They would declare it void.” When the delegates voted at the end of June in 1788, they ratified the Constitution 89-79, adding Virginia � and its already-established conception of judicial review � to the new nation. Dennis J. Callahan is a student at the Marshall-Wythe Law School at the College of William and Mary in Williamsburg, Va. For a more thorough analysis of Marbury ‘s Virginian pedigree, see William Treanor’s article, “The Case of the Prisoners and the Origins of Judicial Review,” in the 1994 Pennsylvania Law Review.

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