Reply To: Providing for the interpretation of the Constitution


It is erroneous to assert that judicial review was not named by Federalists of the ratification campaign as one of the features of the Constitution. Indeed, given that Article VI calls the Constitution “the supreme law of the land,” it’s hard to see what one might hope a judge would do in case a statute conflicted with the Constitution other than strike down the statute–that is, exercise judicial review.

The locus classicus of ratification-era Federalist argument in this regard is of course Federalist #78. What’s interesting is that Antifederalists disagreed about the desirability of judicial review, with Brutus decrying it as unrepublican in New York and Patrick Henry saying he wished federal judges would exercise it, but doubted they would, in Virginia.