Judicial ReEngineering

government. If the general legislature should at any time overleap their limits, the judicial
department is a constitutional check. If the United States go beyond their powers, if they make a
law which the Constitution does not authorize, it is void; and the judicial power, the national
judges, who, to secure their impartiality, are to be made independent, will declare it to be void."
During the ratification process, supporters and opponents of ratification published pamphlets,
essays, and speeches debating various aspects of the Constitution. Publications by over a dozen
authors in at least twelve of the thirteen states asserted that under the Constitution, the federal
courts would have the power of judicial review. There is no record of any opponent to the
Constitution who claimed that the Constitution did not involve a power of judicial review.
After reviewing the statements made by the founders, one scholar concluded: "The evidence
from the Constitutional Convention and from the state ratification conventions is overwhelming
that the original public meaning of the term 'judicial power' [in Article III] included the power to
nullify unconstitutional laws."
The Federalist Papers
The Federalist Papers, which were published in 1787–1788 to promote ratification of the
Constitution, made several references to the power of judicial review. The most extensive
discussion of judicial review was in Federalist No. 78, written by Alexander Hamilton, which
clearly explained that the federal courts would have the power of judicial review. Hamilton
stated that under the Constitution, the federal judiciary would have the power to declare laws
unconstitutional. Hamilton asserted that this was appropriate because it would protect the people
against abuse of power by Congress:
“
[T]he
courts were designed to be an intermediate body between the
people and the legislature, in order, among other things, to keep the
latter within the limits assigned to their authority. The interpretation
of the laws is the proper and peculiar province of the courts. A
constitution is, in fact, and must be regarded by the judges, as a
fundamental law. It therefore belongs to them to ascertain its
meaning, as well as the meaning of any particular act proceeding
from the legislative body. If there should happen to be an
irreconcilable variance between the two, that which has the superior
obligation and validity ought, of course, to be preferred; or, in other
words, the Constitution ought to be preferred to the statute, the
intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the
judicial to the legislative power. It only supposes that the power of
the people is superior to both; and that where the will of the
legislature, declared in its statutes, stands in opposition to that of the
people, declared in the Constitution, the judges ought to be governed
”
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