Eakin v. Raub, 12 Serg. & Rawle 330 (Pa. S. Ct.) (1825)

Facts—This otherwise insignificant Pennsylvania Supreme Court case, which dealt with the legitimacy of a state law designed to adjust the time that a person living abroad could make claims to unoccupied land, is often cited in constitutional law casebooks for Pennsylvania Justice John Bannister Gibson’s dissenting opinion. Gibson challenged John Marshall’s arguments in Marbury v. Madison (1803) for judicial invalidation of legislation that judges believe to be unconstitutional.

Question—Should judges have the power to declare acts passed by Congress to be unconstitutional?

Decision—No [Answer by the dissent].

Reason—J. Gibson (in dissent). The existence of a written constitution, per se, does not invest the judiciary with the power of judicial review. Absent “the impregnable ground of an express grant,” which is missing from the U.S. and Pennsylvania constitutions, the judiciary should have no more right to review an act of legislation, other than to see if it was legitimately adopted, than the legislature would have to review acts of the judiciary. Marshall’s opinion in Marbury thus took the doctrine of separation of powers too far. The legislative branch, whose members are elected by the people, better incorporates this sovereignty than does the judicial branch. The oath that judges take is not peculiar to them, and it is not intended to give judges the unspecified right of judicial review, but only to assure that they do their constitutionally mandated duties: it “is designed rather as a test of the political principles of the man, than to bind the officer in the discharge of his duty.” The advantage of a written constitution stems not from the power that it invests in the judiciary but from its articulation of first principles that all can consult. If the people’s representatives make a mistake in interpretation, they can change their minds or the people can replace them, but when the judiciary errs, a constitutional amendment or convention is required. Although rejecting judicial invalidation of federal laws, Gibson believed that the supremacy clause gave judges specific authority to invalidate state laws that they considered to be in violation of the U.S. Constitution.