Point of View

An N.C. precedent for judicial review

July 4, 2012 

In ruling last week on the constitutionality of President Barack Obama’s health care law, the justices of the U.S. Supreme Court engaged in the centuries-old legal doctrine of judicial review. The first time the Supreme Court applied the doctrine was in the landmark 1803 case of Marbury v. Madison, when the high court held that it is the ultimate arbiter of whether a statute enacted by Congress violates the Constitution.

What few appreciate is that before the Marbury case, lawyers and judges in North Carolina played a key role in establishing the principle of judicial review, in the case of Bayard v. Singleton, decided 225 years ago (in May 1787)). Like the controversy over “Obamacare,” the Bayard case was not just a legal dispute, but a hard-fought political battle driven by passionate partisans on both sides.

The case grew out of the rebel victory over the British during the Revolution, and the victors’ hatred of the Loyalists, native-born allies of the British who remained loyal to the Crown during the war. Among them was Samuel Cornell. One of the richest and most powerful men in North Carolina, he fled after the rebels seized control of the colony and never became a citizen of the new United States.

Late in 1777, Cornell returned to North Carolina in a British ship under a flag of truce, hoping to receive permission to come ashore at New Bern to settle his affairs. Permission was denied, and instead the General Assembly urged the governor to disregard the flag of truce, take Cornell prisoner and confiscate the ship and all his property.

Recognizing his precarious position, Cornell never left the ship. Instead, his daughter, Elizabeth Cornell Bayard, came on board. Cornell deeded a New Bern house and lot to her, and then he left North Carolina, never to return.

Five years later, with the war over and the rebels ascendant, the General Assembly enacted a law that confiscated for auction the property of prominent Loyalists, specifically including Cornell’s. A merchant named Spyers Singleton purchased Cornell’s New Bern house and received a confiscation deed.

Mrs. Bayard filed a lawsuit to eject Singleton from the house, and the General Assembly responded by passing a statute intended to protect purchasers such as Singleton from “expensive and vexatious law-suits” filed by “obnoxious and disqualified persons.” The new law mandated that such lawsuits be dismissed upon a simple showing that the purchaser had received a confiscation deed from the state.

In stepped William Richardson Davie, a brilliant young lawyer who had made a name for himself as a daring cavalry officer during the war. He would prove to be as fearless in the courtroom and in the legislature as he had been in battle, and would one day found the University of North Carolina and become governor.

Never reluctant to take on an unpopular cause (he had repeatedly defended Loyalists tried for treason), Davie was now part of a stellar legal team representing Mrs. Bayard. Representing Singleton were Abner Nash, a former governor, and Alfred Moore, the attorney general. Moore and Nash filed a motion to dismiss Mrs. Bayard’s lawsuit.

Davie responded by attacking the statute as unconstitutional. Since the state constitution of 1776 guaranteed a jury trial in all cases respecting property, he argued, the act was unconstitutional and void because it deprived Mrs. Bayard of her right to a jury trial.

The argument that a statute may be unconstitutional, and that a judge can strike it down, is a well-settled legal principle today. But in 1786, it was a novel and politically explosive theory. Nearly all political power was vested in the General Assembly, and it was unheard of to attack the power of the legislature to enact laws for the good of the people.

As a young lawyer, Davie was making powerful enemies who were not above playing hardball politics. They had a grand jury indict him for simply making a legal argument in open court. To their credit, the judges hearing the case quashed the indictment, but Davie would soon put those same judges in his crosshairs.

Extremely deferential to the General Assembly, the judges did not want to decide whether the statute was void and hoped instead that the legislature would repeal it and relieve them of having to make a decision.

Davie (who was also a General Assembly member) and his allies would not let the judges off the hook. Because of their indecision in the Bayard case and other perceived offenses, Davie brought impeachment charges against them, seeking to have the legislature remove them from the bench. He lost that fight but ultimately won the constitutional argument.

In May 1787, while Davie was in Philadelphia as a delegate to the Constitutional Convention, the judges finally issued their decision. They ruled that the statute was null and void because it violated the right to a jury trial. On the narrowest legal issue, Mrs. Bayard was entitled to a jury trial on the question of who should be declared the owner of her house. More broadly, and thanks to Davie’s hard-charging tactics, the principle of judicial review was now established in North Carolina.

From his client’s perspective, Davie’s victory was one in name only. Six months later, Mrs. Bayard received her day in court, but lost. Singleton was declared the rightful owner of the house because Samuel Cornell was not a U.S. citizen at the time he deeded the property to her, and his status as an alien meant the deed was void.

The ramifications of Bayard v. Singleton were important. In the summer of 1787, the news that judges in North Carolina had struck down a statute as unconstitutional was well known to Davie and other Founding Fathers in Philadelphia drafting the Constitution. They certainly would have taken into account that federal judges would be called upon to interpret and apply the Constitution, and to protect constitutional rights from legislative encroachments and usurpations.

Indeed, 16 years later, the U.S. Supreme Court in Marbury v. Madison would follow North Carolina’s lead, striking down a federal statute as unconstitutional. Before that case ever reached the high court, however, the arguments in favor of judicial review were well known to at least one of its members. Alfred Moore, Davie’s old courtroom foe, was a justice of the U.S. Supreme Court when Marbury was argued and decided.

Davie’s once-novel argument not only carried the day in Bayard v. Singleton, but later became enshrined for the young American nation in Marbury v. Madison– and remains just as vital today, 225 years later.

Scott A. Miskimon is a partner in the Raleigh law firm of Smith Anderson and a member of the Board of Trustees of the N.C. Supreme Court Historical Society.

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