Origins of the Federal Court System

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.

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.


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