RUTGERS v. WADDINGTON (New York Mayor's Court, 1784)

Decided in 1784 by the Mayor's Court of New York City, this was an early state precedent for judicial review and the first reported case in which the constitutionality of a state act was attacked on the ground that it violated a treaty of the United States. The state's Trespass Act allowed Rutgers, who had fled New York when the British occupied the city, to sue for the value of rents lost while her property was held by British merchants under military authority. The statute barred defendants from pleading that military authority justified the "trespass" under acts of war and the law of nations. The Treaty of Peace, however, canceled claims for injuries to property during the war. alexander hamilton, representing the defendants, expressly argued that the court should hold the Trespass Act unconstitutional.

Chief Judge james duane, for the court, declared that the state constitution embodied the common law and that the common law recognized the law of nations. Duane also declared that the union of the states under the articles of confederation constituted "a fundamental law, " according to which Congress had exclusive powers of making war and peace: "no state in this union can alter or abridge, in a single point, the federal articles or the treaty." His logic having led him to the brink of holding the Trespass Act void, Duane abruptly endorsed the prevailing Blackstonian theory of legislative supremacy. When the legislature enacted a law, "there is no power which can controul them … the Judges are not at liberty, altho' it appear to them to be unreasonable, to reject it: for this were to set the judicial above the legislative, which would be subversive of all government." Duane then declared that the legislature had not intended to revoke the law of nations and that the court had to expound the statute to give the legislature's intention its effect, whereupon the court emasculated the statute. The judgment was that for the time the property was held under military order, acts done according to the law of nations and "buried in oblivion" by the treaty could not be redressed by the statute; Rutgers could not recover for trespass.

Technically the court had construed the act to conform to the treaty and the law of nations, but the legislature angrily resolved that the adjudication was "subversive of all law and good order" and that if a court could "dispense with" state law, "Legislatures become useless." Although a motion to remove the judges failed, a public protest meeting adopted "An Address to the People," angrily accusing the court of having "assumed and exercised a power to set aside an Act of the State." The "Address," severely condemning judicial review, was widely circulated, as was the pamphlet report of the case.

Leonard W. Levy
(1986)