Because the Federalists outmaneuvered the Antifederalists in presenting the Constitution to the American people, the Antifederalists faced a predicament of what to do. As Richard Henry Lee stated, many who wished to change the federal structure of government realized that they had to accept “this or nothing.” Gordon Wood, The Creation of the American Republic: 1776-1787, 547 quoting Lee to Mason, Oct. 1, 1787, Ballagh, ed., Letters of R. H. Lee, II, 438. The Antifederalists were more or less forced to “attack the federal government in those mechanical Enlightenment terms most agreeable to the thought of the Federalists: the division and balancing of political power,” otherwise known as separation of powers. Gordon Wood, The Creation of the American Republic: 1776-1787, 548.
While during the American Revolution, the judiciary was mostly forgotten, in the interest of controlling gubernatorial power by empower legislatures, that began to change during the 1780s.
The Constitution, in combination with the Judiciary Act of 1789, created the three-tiered court system that is familiar to modern Americans. However, one of the defining features of the judiciary is the concept of judicial review. Judicial review is the doctrine that permits a court, such as the Supreme Court in Marbury v. Madison, to declare an act of Congress unconstitutional. See Gordon Wood, Empire of Liberty, 442. In 1803, Chief Justice John Marshall was the first to exercise this power of the Supreme Court, setting the precedent for future courts, particularly in the 20th Century, to declare acts of Congress unconstitutional. Id.
Thomas Jefferson declared the following year, in 1804, that granting the courts the power of judicial review “would make the judiciary a despotic branch.” Malone, Jefferson the President: First Term, 155. James Madison explained that judicial review “makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper.” Madison’s Observations on Jefferson’s Draft of a Constitution for Virginia, 1788, Papers of Jefferson, 6: 315.
Even lesser known Americans who believed the legislatures in the 1780s created unjust laws did “not agree that judges ought to have the authority to declare such legislation void.” Gordon Wood, Empire of Liberty, 444. One such American, Richard Dobbs Spaight, delegate to the Constitutional Convention from North Carolina stated that judicial review “operated as an absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess.” Richard Spaight to James Iredell, August 12, 1787, in Griffith J. McRee, Life and Correspondence of James Iredell (New York, 1857-1858), 2; 169-70.
Some believed that “the power of the judges alone to declare unconstitutional laws void was too extreme, too exceptional, and too fearful an act to be used against all those ordinary unjust, unwise, and dangerous laws that were nevertheless not ‘so unconstitutional as to justify the Judges in refusing to give them effect.'” Gordon Wood, Empire of Liberty, 446 quoting Farrand, ed., Records of the Federal Convention, 1: 97, 73. Thus, some congressmen in 1792 considering establishing a procedure for federal judges to notify Congress when they would declare a law unconstitutional. Gordon Wood, Empire of Liberty, 446.
It is notable that so many Americans were comfortable with this increasingly powerful judiciary, with the newly created tool of judicial review. Although judicial review was used in Marbury v. Madison, it would not be used again until the Dred Scott decision in 1857. Nonetheless, Americans began to associate the judiciary with being additional representatives of Americans’ collective interests. The fact that the judiciary began to assert itself in more drastic ways into the tripartite government system, combined with most Americans’ desire to have additional representation, permitted the judiciary to become a permanent part of American life.
Further, the importance of the creation of the doctrine of judicial review could hardly be understated. While some were uncomfortable with the idea of the future of democracy occasionally being in the hands of a few judges, it provided a more neutral, reasonable filter for legislation and acts of Congress. Undoubtedly, mistakes have been made and continue to be made by the judiciary, but most Americans would take comfort that as the decades and centuries have progressed, one bad court has been counterbalanced by a good court, leaving America to go down a conscientious path of moderation.