Terrett v. Taylor 9 Cranch 43 (1815)
TERRETT v. TAYLOR 9 Cranch 43 (1815)
This was the first case and one of the very few in which the Supreme Court relied exclusively upon the concept of a higher law as the sole basis for holding a state act unconstitutional. After adopting thomas jefferson's statute of religious liberty, which separated church and state in Virginia, the legislature confiscated certain Episcopal glebe lands and sold them, using the proceeds for charity. The lands in question having been donated to the church by private persons, no contract and therefore no contract clause issue existed. Justice joseph story for the Court held the confiscation act void, offering as grounds: "we think ourselves standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and letter of the constitution.…" Story did not mention which letter. Usually the Court applied the doctrine of vested rights in a way that absorbed the higher law within express provisions of the Constitution.
Leonard W. Levy