Massachusetts delegate Nathaniel Gorham first proposed that the president should nominate the justices and the Senate should confirm them. Hulton Archive/Getty Images.

      Were the framers in agreement on the creation of lower federal courts?

      No, the framers disagreed over whether the Constitution should call for the creation of lower federal courts. For example, John Rutledge—who would later become the second chief justice of the U.S. Supreme Court—said that creating lower federal courts would constitute “an unnecessary encroachment” upon state courts. Maryland’s Luther Martin warned that the creation of lower federal courts would cause “jealousies and oppositions in the State tribunals.” However, Virginia’s James Madison—the nation’s future fourth president—argued that lower federal courts were necessary to ensure the fair administration of justice. He warned that state courts may not provide “unbiased” rulings.

      JUDICIAL REVIEW AND JUDICIAL INDEPENDENCE

      Did the framers agree on the power of judicial review?

      No, the Founding Fathers did not agree on the power of judicial review—the power of the Supreme Court to review the constitutionality of laws and regulations. The Federalists believed in establishing a strong, central government. One such Federalist, Alexander Hamilton, the nation’s first secretary of the Treasury, argued forcefully for the power of judicial review in one of his Federalist Papers (#78). The Federalist Papers were a series of essays published anonymously under the pen name “Publius” by Hamilton, James Madison, and John Jay to support the newly drafted Constitution and the new central government. In 1789, Madison argued for the addition of a Bill of Rights to the Constitution, and wrote that the Bill of Rights would give the judiciary a “check” on legislative encroachments on individual liberties.

       Pro-Con: Judicial Review

      Pro-Judicial Review (Federalist Papers): “It is far more rational to suppose, that the 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.”

      Anti-Judicial Review (Anti-Federalist Papers): “The supreme court under this constitution would be exalted above all other power in the government, and subject to no control. The business of this paper will be to illustrate this, and to show the danger that will result from it. I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. Certain it is, that in England, and in the several states, where we have been taught to believe the courts of law are put upon the most prudent establishment, they are on a very different footing.”

      Others, known as Anti-Federalists, believed that the new Constitution concentrated too much power in the new, federal government. They wanted to keep the power with the individual state governments. Robert Yates, a leader from New York, wrote a series of essays called the Anti-Federalist Papers under the pen name “Brutus.” In one of these, he attacked the concept of judicial review as residing too much power in the judiciary.

      Does the Constitution explicitly give the power of judicial review to the judiciary?

      No, the U.S. Constitution does not mention the concept of judicial review. Many framers assumed that the Court would have the power to declare laws unconstitutional but it is not specifically mentioned in the Constitution. Several lower courts asserted the power of judicial review and, most famously, Chief Justice John Marshall clearly established the power for the judiciary when he wrote in Marbury v. Madison (1803) that “it is emphatically, the province of the judicial department, to say what the law is.”

      What other provisions of the Constitution imply a power of judicial review on the part of the courts?

      The Supremacy Clause of the Constitution, at least to some historians and scholars, provides some justification for the principle of judicial review. Chief Justice John Marshall cited the Supremacy Clause in his famous Marbury v. Madison (1803) opinion, which declared that the judiciary had the power of judicial review. Marshall wrote:

      It is also not entirely unworthy of observation that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

      Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.