In view of these conflicts, and of the disastrous results attending the first important use of the federal judicial power to annul an act of Congress in the Dred Scott case, it sounds like bitter irony when Judge Lurton says that this power has made us "for more than a century the most law-abiding people of the earth."

III concluded

The conclusion of the  third part of Louis Boudine's argument dealing with the actual issuance of the Marbury v. Madison decision and its immediate consequences in the years before its first significant use in the putrid Dred Scott decision, still infamous as likely the worst Supreme Court decision in the history of that court — which deserves to have its many, many atrocious rulings exposed instead of concealed by concentrating on merely the worst of those many rulings — ends by briefly mentioning the uses of it made by the state Supreme and other courts.  I have not researched those very much, apart from he dissent of Judge Gibson in Eakin v. Robb mentioned below.   

I will include at least one post about that, the lengthy document which is an extremely important piece of legal reasoning is as timely now as it was in the two hundred one years since it was issued.  It is far more insightful than any defense of the Court's power grab I've ever seen which depends mostly on lore, myths, habits, lies and outright fiction.   In fact, I've seen pro-Marbury scribblings that would seem to misrepresent Gibson's incisive reasoning against it as supporting the Supreme Court's original usurpation.  Lying is the mother tongue of lawyers and, especially, those who write about it academically and polemically.  

In the meantime the conflict over this power was raging in other fields.  The state courts in several instances attempted to follow up the logic of Marbury v. Madison.  The state courts were in this respect in a much better situation than the federal courts.  

The acts of the state legislatures were admittedly subject to review by the judiciary,  both federal and state, on the score of repugancy to the federal Constitution, treaties and statutes, in matters of federal character.  

From this it was but one step — and a step which a layman could not always see — to the power of review on the score of repugancy to the respective state constitutions.  And yet this step was not taken unopposed, even after Marbury v. Madison. 

The ensuing conflicts form one of he most interesting chapters in our history — a chapter unfortunately now entirely neglected, the common lot of all struggles which end in defeat.  

It may be said in general,  that the actual exercise of this power by the judiciary of the several states during the first fifty years after the adoption of the Constituion was very rare;  and it was used only under extraordinary circumstances;  and that its use almost always provoked great public excitement and sometimes entailed results of a more serious sort.  

In Kentucky it at one time led to the creation of two rival courts, each defying the other, and it almost led to the creation of two state governments. 

There is are two footnotes with citations worth mentioning here:

1  In reference to these struggles, cf.  American State Papers Misc., vol ii pp 2, 6;  Sketch of Hon. Calvin Pease, Western Law Monthly, June, 1863, quoted in Cooley, Constitutional Limitations (7th ed.), pp 229, 230;  Niles Register, vol xxiii supplement, p. 155;  Collins History of Kentucky, vol i pp. 218 et weq.  

2  Baldwin,  The American Judiciary, pp 113-115.]

I hope to research this fascinating sounding topic in American history. 

In view of these conflicts, and of the disastrous results attending the first important use of the federal judicial power to annul an act of Congress in the Dred Scott case, it sounds like bitter irony when Judge Lurton says that this power has made us "for more than a century the most law-abiding people of the earth."

I have mentioned that Horace Harmon Lurton had been a Confederate who waged insurrection against the United States and the Constitution, such was his notion of abidance to the law.   If it hadn't been for the actions of two of the worst presidents of the 19th century, Andrew Johnson and Rutherford Hayes, he may have remained ineligible to hold public office for the rest of his life.   

It would be interesting to go over whether the relevant provisions of the Supreme Court sliced, diced, minced, rinsed, denatured, etc. 14th Amendment was relevant to him being on the Court as an abstract question.  He certainly gave aid and comfort to those who waged war against the Constitution of the United States, which is an explicit bar for someone holding federal office contained in its text and, I'd bet, in the legislative record of its drafting and approval by Congress.  

Though, as it was always the case when it was a matter of the slave-power, which persisted in slightly changed form through until the mid-1960s and has been revived by the Roberts Court, almost everything that favors the wealthy and the powerful against the powerless,  the Constitution doesn't seem to apply, even when it so obviously does.   

And among the infamous things the Roberts Court did was to green-light the most culpable and extreme insurrectionist since the end of the Civil War, Trump's, again taking the presidency from which he waged an insurrection against the Constitution.   Even the bloodiest and worst of the Confederates' insurrection against the Constitution and, far more importantly, the country cannot be said to match Trumps' which was waged as president to overturn an election and remain in power.   If the law was not an ass before the Roberts Court,  it's a whole team of them now. 

In most of the states, however the power in question, although generally asserted, was not used at all during the first half of Judge Lurton's "more than a century."  

This was the case, for example, in Pennsylvania, then the leading state of the Union.  During the half-century following the adoption of the United States Constitution the Pennsylvania courts did not declare a single law unconstitutional, although the judges, with one notable exception, asserted that right.  

There may have been other exceptions, for it is probable that the doctrine was not quite so universally accepted even by the judiciary,  either in Pennsylvania or elsewhere, as it is now imagined; but the one exception known to us is that of Judge John B. Gibson, for  any years judge of the Pennsylvania supreme court, part of the time its chief justice, and one of the ablest men who ever sat on that renowned bench.  

His opinion, officially stated in 1825, is a most convincing (and in my judgment quite unanswerable) argument against the existence as well as against the expediency of the power of the judiciary to review legislation under any circumstances.  

Its historical importance, however, lies in the fact that, nearly a quarter of a century after Marbury v. Madison, one of the three judges who then composed the highest court of the great state of Pennsylvania, in an official judicial opinion, denied the existence of the power asserted by Marshall.  And it is not without historical interest, as an evidence of the spirit of his time and commentary upon the changed spirit of ours, that Judge Gibson's views did not impede his promotion to the chief-justiceship of his state.