n a peculiar
manner the guardians of those rights; they will be an impenetrable
bulwark against every assumption of power in the Legislature or
Executive; they will be naturally led to resist every encroachment upon
rights expressly stipulated for in the Constitution by the declaration
of rights." Ibid. 385. Nine years later as author of the Virginia
Resolutions of 1798, he committed himself to the proposition that the
final power in construing the Constitution rested with the respective
State legislatures, a position from the logical consequences of which he
spent no little effort to disengage himself in the years of his
retirement. Another recidivist was Charles Pinckney, who in 1799
denounced the idea of judicial review as follows: "On no subject am I
more convinced, than that it is an unsafe and dangerous doctrine in a
republic, ever to suppose that a judge ought to possess the right of
questioning or deciding upon the constitutionality of treaties, laws, or
any act of the legislature. It is placing the opinion of an individual,
or of two or three, above that of both branches of Congress, a doctrine
which is not warranted by the Constitution, and will not, I hope, long
have many advocates in this country." Wharton, State Trials, 412. The
great debate in Congress in the first session of the 7th Congress over
the repeal of the Judiciary Act of 1801 speedily developed into a debate
over whether judicial review of acts of Congress was contemplated by the
Constitution. In the Senate Breckenridge of Kentucky, author of the
Kentucky Resolutions of 1799, contended for the equal right of the three
departments to construe the Constitution for themselves within their
respective spheres, and from it deduced the exclusive right of the
legislature to interpret the Constitution in what regards the lawmaking
power and the obligation of the judges to execute what laws they make.
But the feeble disguise which this doctrine affords legislative
sovereignty made it little attractive even to Republicans, who for the
most part either plainly indicated their adherence to the juristic view
of the Constitution, or following a hint by Giles of Virginia, kept
silent on the subject. The Federalists on the other hand were unanimous
on the main question, though of divergent opinions as to the grounds on
which judicial review was to be legally based, some grounding it on the
"arising" and "pursuant" clauses, some on the precedents of the Pension
an