Holmes v. Walton: A Selective Bibliography

(The arrangement is chronological.)

Austin Scott, "Holmes vs. Walton: The New Jersey Precedent: A Chapter in the History of Judicial Power and Unconconstitutional Legislation," 4 Amer. Historical Rev. 456-469 (1899), reprinted as appendix to United States v. Jepson, 90 F. Supp. 983, 987-996 (D.N.J. 1950). Adduces various evidence indicating that the decision of Sept. 7, 1780 was made on the constitutional issue of the size of the jury.

Edward S. Corwin, "The Establishment of Judicial Review," 9 Mich. L. Rev. 102, 110-112 (1910).

William M. Meigs, "The American Doctrine of Judicial Power, and Its Early Origin," 47 Am. L. Rev. 683, 691, 694-696 (1913).

William M. Meigs, The Relation of the Judiciary to the Constitution (New York: Neal Publ. Co. 1919). Discusses Holmes v. Walton at 61-63, and New Jersey delegation's knowledge of it at 134-135.

Charles R. Erdman, Jr., The New Jersey Constitution of 1776 (Princeton Univ. Press, 1927) at 91-92.

William W. Potter, "Judicial Power in the United States," 27 Mich. L. Rev. 167, §41 at 177 (1928)

Louis B. Boudin, "Precedents for the Judicial Power," 3 St. John's L. Rev. 173, 179-201 (1929). Questions the authenticity of the report of State v. Parkhurst and attempts to refute Scott's interpretation of Holmes v. Walton. Same material appears in Boudin's book Government by Judiciary (1932), v.I at 534-555.

C. Perry Patterson, "The Development and Evaluation of Judicial Review," 13 Wash. L. Rev. & St. B. J. 75, 77-78 (1938)

William W. Crosskey, Politics and the Constitution in the History of the United States vol.2, 948-952 (1953). Though conceding that the case was understood at the time as having held a statute unconstitutional, interprets it instead as having held that the Seizure Act was misinterpreted by Justice who called for the six-member jury.

Charles Grove Haines, The American Doctrine of Judicial Supremacy (1959), discusses Holmes v. Walton at pages 92-95.

Leonard W. Levy, "Judicial Review, History, & Democracy: An Introduction," in Judicial Review and the Supreme Court (Leonard W. Levy, ed., 1967) at 9, dismisses Holmes v. Walton as a case "in which disappointed parties ... alleged baselessly that it had voided an act."

Leonard B. Rosenberg, "Constitutional Supremacy: An Early Advocate of Judicial Review," 7 Duquesne L. Rev. 515, 524 (1969).

Robert Lowry Clinton, Marby v. Madison and Judicial Review (Univ. Press of Kansas, 1989), 48-49, 248 n.43

Wayne D. Moore, "Written and Unwritten Constitutional Law in the Founding Period: The Early New Jersey Cases," 7 Const. Comment. 341 (1990), at 341-343, 348-357.

Robert E. Riggs, "Substantive Due Process in 1791," 1990 Wis. L. Rev. 941, 977-978.

Calvin R. Massey, "The Natural Law Component of the Ninth Amendment," 61 U. Cin. L. Rev. 49, 67-68 (1992)

Saikrishna B. Prakash & John C. Yoo, "The Origins of Judicial Review," 70 Univ. Chicago L. Rev. 887, 936 n.184 (2003) , cites evidence that Holmes v. Walton was well known in the 1780's.

Philip Hamburger, "Law and Judicial Duty," 72 Geo. Wash. L. Rev. 8, 33 n.92 (2003).

Donald Scarinci, David Brearley and the Making of the United States Constitution (2005), Chapter VI. "Chief Justice: Holmes v. Walton and the Principle of Judicial Review."

William Michael Treanor, "Judicial Review Before Marbury, 58 Stanford L. Rev. 455, 474-475 (2005).

Douglas E. Edlin, Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review (Univ. of Michigan Press, 2008), 89-91: "Holmes v. Walton and the Absence of Hierarchy in Legal Sources."

Philip Hamburger, Law and Judicial Duty (Harvard Univ. Press, 2008), 407-422. A reexamination of the case as an instance of judges following their duty to give judgment in accordance with the law of the land.

Michael S. Adelberg, "Factions, Contraband, and Civil War: The Historical Context of Holmes v. Walton," (Feb. 2010), available in New Jersey Digital Legal Library at http://njlegallib.rutgers.edu/hw/Factions_Contraband_and_Civil_War.pdf