EAKIN v. RAUB 12 Sargeant & Rawle 330 (Pa. 1825)

In this otherwise insignificant Pennsylvania case, john bannister gibson offered the classic rationale for judicial restraint. His opinion is an explicit refutation of john marshall's arguments for judicial review in marbury v. madison (1803), a position which Gibson confessed he had once accepted, but more as "a matter of faith than of reason."

Gibson's major premise was that the judiciary had no right or power to void legislation without express constitutional warrant. Like Marshall, Gibson agreed that under a written constitution, no branch of government could claim more than its granted powers. But as the legislature was supreme within the limits of its grant, Gibson argued, the judiciary could not annul those powers without "direct authority" from the constitution, "either in terms or by irresistible implication." While the judiciary might interpret legislation, it had no power to "scan the authority of the lawgiver." The legislature was superior, Gibson concluded, because "the power to will and to command is essentially superior to the power to act and obey."

Legislative indiscretions and abuses severely tested Gibson's fidelity to his principles. In Norris v. Clymer (1845) Gibson acknowledged that he had altered his views on judicial review because the Pennsylvania constitutional convention of 1837, by its silence, apparently sanctioned the power, and also "from experience of the necessity of the case." While Gibson undoubtedly moderated his views for some circumstances, he remained generally faithful to the notion of legislative superiority and the wisdom of judicial restraint. The "experience of the necessity of the case" involved legislative private acts that granted equity. The legislature had given substantially complete equity jurisdiction to the courts in 1836, yet continued to act on its own, inevitably provoking clashes with the judiciary. In Greenough v. Greenough (1849) Gibson strongly defended an exclusive sphere for judicial power: "[T]he judicial power … is … so distributed … that the legislature cannot exercise any part of it." The next year, in De Chastellux v. Fairchild, he struck down an act ordering a new trial in an action of trespass." The power to order new trials is judicial," he said; "but the power of the legislature is not judicial."

In the Eakin opinion Gibson emphasized judicial independence, and he acknowledged legislative sovereignty, but only "within the limit of its powers." Further, he anticipated cases such as De Chastellux when he said that a legislative act directing a reversal of a court judgment would be "a usurpation of judicial power." Finally, he declared that when the judiciary was the prescribed organ to execute the constitution, such as in the conduct of trials, the judges were bound to follow the constitution, a legislative act notwithstanding.

Throughout the remainder of his long career, Gibson adhered to the spirit of Eakin. He insisted that the legislature's apprehension of public sentiment, not the fear of judicial interposition, offered the most effective barrier to unconstitutional action. With language similar to later opinions by morrison r. waite and oliver wendell holmes, Gibson declared that the responsibility for overcoming abusive acts rested not with the courts, but with the people, who were "wise, virtuous, and competent to manage their own affairs."

Stanley I. Kutler
(1986)