Strengthening Constitutional Self-Government

No Left Turns

We Have A Winner Three Winners

I obviously needed a tougher question, because we received not one, but three correct answers before noon, with more following that. The first out of the gate was Lucas Morel, who despite being first nearly got overlooked in the email bin. Professor Morel suggested Hylton v. United States for the federal statute, and Van Horne’s Lessee v. Dorrance for the state statute. Hylton v. United States, is a winning answer. In Hylton, the court determined that a congressionally authorized geographically uniform tax on carriages was not a "direct" tax in violation of art. I of the Constitution. While Van Horne’s Lessee is also a case involving judicial review, it is not a Supreme Court case, but rather was a circuit court decision. Professor Morel goes one-for-two and quickest draw, and therefore he scores the coveted mug.

Showing that we’re a bunch of softies at NLT, however, we noted that reader David Bird was the first to offer the other of the two cases: Ware v. Hylton, a case in which the Supreme Court struck down a state law as violative of a treaty pursuant to the dictates of the Supremecy Clause in 1796. Mr. Bird also earns a a well-deserved mug.

Finally, reader Moe Freedman offered Chandler’s Case and United States v. Yale Todd, both of which do indeed involve Supreme Court review regarding the constitutionality of congressional acts prior to Marbury. I must admit that I had not considered these cases when I wrote the question because they were not published, and we know about them only through indirect references. See, e.g., Marbury, 5 U.S. (1 Cranch) 137, 171-72 (1803) (describing Chandler, although not by name); see also United States v. Ferreira, 54 U.S. (13 How.) 40, 52-53 (1851) (note of Justice Taney inserted by order of court, speaking about Yale Todd). That said, they certainly are correct, and based upon the shear obscurity of the references, Mr. Freedman has earned a mug. Thanks again to everyone who competed.

Discussions - 2 Comments

Does it matter that Justice Chase claimed,in his opinion, that the court was not exercising "Judicial Review" as contemplated by Marbury v. Madison?

"As I do not think the tax on carriages is a direct tax, it is unnecessary, at this time, for me to determine, whether this court, constitutionally possesses the power to declare an act of congress void, on the ground of its being made contrary to, and in violation of, the constitution; but if the court have such power, I am free to declare, that I will never exercise it, but in a very clear case. I am for affirming the judgment of the circuit court."

In answer to Mr. Logan question, what Mr. Chase did here is quite odd. He determined that the tax at issue was not a direct tax, and therefore permissible, while expressly avoiding the question of judicial review (the point about avoidance of judicial review was made in my initial posting giving the hints, and was reaffirmed by your kind posting). That said, the Court actually exercised judicial review: why did it matter whether or not the tax was "direct?" Because the dictates of art. I of the Constitution prohibited direct taxes. Thus, the Court actually reviewed the constitutionality of the statute, but finding it constitutional opted to reserve the question of judicial review. Thanks for the question.

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