Preceding Marbury: Confederation Congress Endorses the Concept of Judicial Review

The case of Marbury v. Madison (1803) is recognized as one of the great judicial milestones in American jurisprudence because it enunciated the concept of judicial review. Its significance, however, would suffer if three resolutions of the Confederation Congress were better known and understood. This essay explains this important action in the evolution of American jurisprudence.

Treaty of Peace, 1783 with signatures of John Adams, Benjamin Franklin, and John Jay
Treaty of Peace, 1783 with signatures of John Adams, Benjamin Franklin, and John Jay

Over and above acknowledging American independence, the Treaty of Peace (1783) placed several obligations on both Great Britain and the United States. Great Britain was to evacuate eight of its forts located in American territory along the southern shores of the Great Lakes. Britain was also obliged to compensate slave owners for the slaves that the British army took away when evacuating from American territory in 1783. Both sides agreed that no impediments were to hinder private creditors from collecting pre-war debts and that Congress was to “earnestly recommend” to the state legislatures that Loyalists be compensated for confiscated property. These provisions were violated by both parties.

Portrait of John Jay by Gilbert Stuart
Portrait of John Jay by Gilbert Stuart

On 4 March 1786, U.S. minister to Great Britain John Adams reported that the British would not abandon the northwest forts as long as some states passed acts impeding the collection of pre-war debts along with interest for the war years. On 13 October 1786, Secretary for Foreign Affairs John Jay (who was really de facto prime minister of the United States) submitted the longest of his 500 reports to Congress listing the state acts that hindered the ability of creditors from collecting their debts. Congress considered the report and on 21 March 1787 unanimously adopted three resolutions that were to be sent to the states. Congress ordered Secretary Jay to write a letter to the states incorporating the three resolutions. Jay submitted his letter to Congress on 6 April, where it was read three days later. On 12 April, with eight states in attendance, Congress considered the letter, which was adopted the next day. Congress sent the letter to the state executives on 13 April 1787, one month before the scheduled meeting of the Constitutional Convention in Philadelphia.

The letter stated that Congress under the ninth article of the Articles of Confederation had the sole authority in matters of peace and war and could alone enter into treaties. When duly adopted, treaties “immediately” became “binding on the whole Nation, and superadded to the Laws of the Land” and the states were obliged to adhere to all of their provisions not being able to “authoritatively to decide on, or ascertain the construction and Sense of them.” The letter acknowledged that some states had violated the Treaty of Peace, which not only violated the “dictates of Religion, Morality and National honor, but also the first principles of good policy,” and then served as justification for the British to violate the treaty, particularly in not evacuating the northwest forts. The thirteen sovereign states had by the Articles invested Congress “a general, though limited Sovereignty, for the general and National purposes specified in the Confederation.” To allow the states to violate treaties would soon involve the “Nation in Anarchy and confusion at home, and in disputes which would probably terminate in hostilities and War with the Nations with whom we may have formed treaties.” History furnished “no precedent of such liberties taken with Treaties under form of Law in any Nation.” Such state violations of the treaty would come “at the expence of that esteem, and confidence, and credit, which are of infinitely more worth than all the momentary advantages which such expedients can extort.” “Justice to Great Britain, as well as regard to the honor and Interests of the United States, require that the said Treaty be faithfully executed.” The letter concluded with the statement that “we have the strongest assurances that an exact compliance with the Treaty on our part shall be followed by a punctual performance of it on the part of great Britain.”

The letter was a powerful proclamation of federal authority. It contained the three resolutions unanimously adopted by Congress.

  1. The state legislatures could not pass any “act for interpreting, explaining or construing a National Treaty.” Such treaties by virtue of the Articles of Confederation were “part of the Law of the Land, and are not only independent of the will and power of such Legislatures but also binding and obligatory on them.”
  2. “That all such acts or parts of Acts as may be now existing in any of the States repugnant to the Treaty of peace ought to be forthwith repealed.”
  3. That Congress recommend to the several States “to pass an Act declaring in general terms” that all acts “repugnant to the Treaty” be repealed and that state “Courts of Law and equity shall decide and adjudge” the constitutionality of these repugnant laws, “any thing in the said Acts or parts of Acts to the contrary thereof in anywise notwithstanding.”
Portrait of American Peace commissioners by Benjamin West, 1783
Portrait of American Peace commissioners by Benjamin West, 1783

Between September 1787 and February 1788, nine states adopted acts proclaiming the Treaty of Peace to be the law of the land and that state courts, when cases came before them, should declare null and void any state law that violated the treaty. These states (New Hampshire, Massachusetts, Connecticut, Maryland, Rhode Island, Virginia, Delaware, and New York) were joined by New Jersey, whose legislature asserted that it had not passed any laws that violated the treaty.

What is the significance of these actions?

  1. They show that the Confederation Congress and the states were adopting measures that would make the Articles of Confederation viable no matter what the Constitutional Convention might propose. Congress, in fact, was on a path to make the Articles of Confederation a viable constitutional parliamentary system of government.
  2. These resolutions served as a new Declaratory Act (1766) as to treaties. They also served as precursors to the Supremacy Clause of the Constitution.
  3. They also provided a means whereby the state judiciaries would serve as federal courts, ameliorating one of the weaknesses of the Confederation government. In the Constitutional Convention and subsequently in the debate over ratifying the Constitution, Antifederalists advocated this method of establishing a federal judiciary with state courts presiding in all federal cases of original jurisdiction with a federal appellate system handling any federal case on appeal. Federalists strenuously opposed this proposal preferring instead to establish federal inferior courts of original jurisdiction as provided by the Judiciary Act of 1789. In any case, the Confederation Congress endorsed the concept of judicial review allowing courts to declare laws unconstitutional and null and void. This was exactly opposite to the English system, which after 1688 maintained that all Parliamentary acts were legal and supreme even those acts that were recognized as “unconstitutional” in violating the great documents of English history as well as the common law. British courts after 1688 had no power of judicial review. Thus, the actions of the Confederation Congress of 13 April 1787 set a precedent for the Supreme Court’s decision in Marbury v. Madison a quarter century later.


Further reading:

North Carolina Act of 22 December 1787 declaring the treaty of peace between the United States of America and the King of Great Britain to be part of the law of the land (Evans 21340), chap. 1, 1.