TREVETT v. WEEDEN (Rhode Island, 1786)

A Rhode Island case of 1786, this is the best known of the alleged state precedents for judicial review. The Superior Court of Judicature, the state's highest tribunal, did not hold a state act unconstitutional but it did construe it in a manner that left it inoperative. The case arose under a force act passed by the legislature to compel observance of the state paper-money laws; anyone refusing to accept paper money at par with specie was triable without a jury or right of appeal "according to the laws of the land" and on conviction was subject to a 100 pound fine and costs or be committed "till sentence be performed." Trevett filed an information before the state chief justice charging that Weeden refused tender of paper money at face value. James Varnum, representing Weeden, argued that the force act violated the right to trial by jury, guaranteed by the unwritten state constitution, which was fundamental law that limited legislative powers; the legislature could make law "not repugnant to the constitution" and the judiciary had "the sole power of judging those laws … but cannot admit any act of the legislative as law, which is against the constitution."

The court refused to decide the issue, ruling that it lacked jurisdiction. Its judgment was simply that Trevett's complaint "does not come under the cognizance of the Justices … and it is hereby dismissed." Orally, however, some of the judges, according to the newspaper accounts, declared the force act "to be repugnant and unconstitutional," and one of them pointed out that its phrase, "without trial by jury, according to the laws of the land," was self-contradictory and thus unenforceable.

The governor called the legislature into special session, and the legislature summoned the high court judges to explain their reasons, the legislature said, for holding an act "unconstitutional, and so absolutely void," an "unprecedented" judgment that tended "to abolish the legislative authority." Judge David Howell, the court's main spokesman, defended judicial review and judicial independence. Although he summarized Varnum's argument that the act was unconstitutional, Howell insisted that the legislature had confused the argument, for the judgment was just that the complaint was "cognizable."

The legislature, unconvinced by the court's technical distinction, recognized that the judgment made the paper money laws unenforceable; in effect the court had exercised judicial review, which the legislature deemed subversive of its supremacy. Howell, by contrast, had claimed that if the legislature could pass on the court's judgment, "the Legislature would become the supreme judiciary—a perversion of power totally subversive of civil liberty." Anticipating a motion to unseat them, the judges presented a memorial demanding due process of law. Varnum and the attorney general supported them, arguing that they could not be removed except on a criminal charge. The motion to remove the judges failed, and the legislature even repealed the force act, but it revenged itself on the judges by failing to reelect four of the five members when their annual terms expired, and by ousting Congressman Varnum and the state attorney general. Varnum published a one-sided pamphlet on the case, giving it publicity even in Philadelphia while the constitution convention of 1787 met. Although the pamphlet popularized the doctrine of judicial review, in Rhode Island no judge endorsed it for seventy years after.

Leonard W. Levy
(1986)