From time to time, OCN will post Ohio Constitutional Stories. These will include information about important Ohio constitutional cases and issues about which most people are unaware. The first of these postings is about the origin of judicial review in Ohio.
The Origin of Judicial Review in Ohio
Every law student, every lawyer, and most members of the public have heard of Marbury v. Madison, the landmark 1803 U.S. Supreme Court decision that established judicial review in our federal judicial system. But few Ohioans have heard of our state’s counterpart to Marbury, Rutherford v. M’Fadden, the 1807 decision that established review in Ohio. Rutherford also led to the state’s first major impeachment crisis in which two judges were impeached by the House but acquitted by the Senate by a single vote.
Judicial review—the power of a court to declare statutes unconstitutional—has deep roots in Ohio despite the absence of any express provision in the Ohio Constitution authorizing it. The basic provision creating the state court system and vested it with the judicial power states as follows:
The judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas and divisions thereof, and such other courts inferior to the Supreme Court as may from time to time be established by law.
Art. IV, sec. 1.
These issues are discussed in greater detail in the attached excerpt from Steinglass & Scarselli, The Ohio State Constitution (Oxford University Press) (2nd ed. 2022) (link)