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Marbury v Madison has international fame (to this English lawyer at least) as establishing the federal courts' power to strike down statutes inconsistent with the federal Constitution. However, I do not know and I cannot find the basis and origin of US state courts having the power to strike down state laws as inconsistent with state constitutions. What was the first instance of this occurring, and was it before or after Marbury?

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  • There is a bit of a definitional question. While we think of the U.S. coming into existence in 1776 with the Declaration of Independence followed by the Articles of Confederation (not the U.S. Civil War ones, just the first constitution of the U.S.), the current Constitution took effect in 1789. So it isn't entirely clear if pre-1789 cases should count since the legal analysis was different from 1789 onwards. – ohwilleke Jan 21 at 19:56
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The earliest I know of is Bayard v. Singleton, 1 N.C. 5 (N.C. Super. 1787), which dealt with a North Carolina statute that confiscated land held by British subjects and required the courts to dismiss any lawsuits attempting to reclaim confiscated property.

The North Carolina Superior Court held that because the state constitution conferred a right to a jury on questions of property ownership, the legislature could not require the courts to dismiss lawsuits requesting such a resolution to property disputes:

By the Constitution every citizen has a right to a decision in regard to his property by a trial by jury. The act of Assembly, therefore, of 1785, requiring the Court to dismiss on motion the suits brought by persons whose property had been confiscated against the purchasers, on affidavit of the defendants that they were purchasers from the commissioners of confiscated property, is unconstitutional and void.

So the British subject was entitled to a trial, but the admission that he was a British subject meant that he was an alien and enemy of the government, and therefore not permitted to hold property.

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