Lest We Be Marshall‘d: Judicial Powers and Politics in Ohio, 1806-1812. By Donald F. Melhorn, Jr. (Akron, Ohio: The University of Akron Press, 2003. 352 pp. $44.95, ISBN 1-931968-01-2.)
Lest We Be Marshall‘d is an anecdotal history of politics and the judiciary in Ohio from 1806 to 1812. Author Donald F. Melhorn, Jr., is a Toledo attorney and Adjunct Professor of Law at the University of Toledo . Melhorn is no stranger to scholarship since he published previously on the law. The focus is on the power of the courts to exercise judicial review relative to state laws. Chief Justice John Marshall in Marbury versus Madison, 1803, established the issue of judicial review on the national level. Still it remained a very controversial issue in state politics. Ohio seemingly went beyond reason by subjecting judges to impeachment if they ruled on the constitutionality of a legislative act. Several judges were impeached because they exercised judicial review: Calvin Pease and George Tod.
“Lest We Be Marshall’d” were words spoken as a reference to the influence of the Marshall Court . Melhorn’s anecdotal style is a fresh and scholarly interpretation of politics and personalities during the formative years of Ohio after it had achieved statehood in 1803. Melhorn introduces readers to the dynamics of frontier politics, personalities, and constitutional issues as manifested in the impact of Ohio ‘s “Sweeping Resolution.” In a limited way, Melhorn captured the zeitgeist in Ohio between 1806 and 1812. However, the work is wanting because Melhorn failed to address how Ohio politicians and the judiciary dealt with the black community during these years. When Ohio entered the Union in 1803 under the principles of the Northwest Ordinance, its members narrowly defeated a measure to allow slavery. While the 1887 Ordinance prohibited slavery in the Ohio territory, once it became a state, Ohio could approve or reject the institution. However, between 1804 and 1808, Ohio adopted a series of “Black Laws” which prohibited migration to the state and denied equality to blacks in the state. Thus, it is difficult to appreciate fully any interpretation in 21 st century America that is not inclusive of how politics and courts reacted to Ohio ‘s black community during its formative years.