480
Interpreting and Preserving the Constitution
the ground that it conflicts with the Constitution, it should be emphasized, is not explicitly provided for in the Constitution. There is no mention of the power of judicial review anywhere in the document, and its
legitimacy has therefore been questioned from time to time by some critics of the Court. Very early in our history, however, Chief Justice John
Marshall established the doctrine of judicial review in the celebrated case
of Marbury v. Madison (1803), and the Court has followed it ever since.
In Federalist Nos. 78 and 81, Alexander Hamilton probably spoke for
most of the Framers when he implied that judicial review was an inherent power of the Court under the new Constitution. ‘‘The interpretation
of the law,’’ he wrote, ‘‘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, and the intention of the people to the intention of their
agents.’’
That ‘‘the intention of the people’’ should be preferred ‘‘to the intention of their agents’’ is a phrase that strikes the modern reader as peculiar. Do not elected representatives, the agents of the people, speak for the
people? Is not their intent the intent of the people? The founding generation did not equate the intent of the people with the intent of the legislature in every and all respects. Justice William Paterson, a delegate to the
Philadelphia Convention who later served on the Supreme Court, put it
this way in Van Horne’s Lessee v. Dorrance (1795): the Constitution ‘‘is the
form of government delineated by the mighty hand of the people, in
which certain first principles of fundamental laws are established. . . . [I]t
contains the permanent will of the people and is the supreme law of the
land.’’ It necessarily follows that there is nothing inherently undemocratic about judicial review in principle, in view of the magistrates’ obligation to support and defend the permanent, or constituent, will of the
people, in preference to the temporary, or political, will of transient majorities. By ‘‘constituent’’ will, we mean the will of the people that is expressed when they create a government. The Framers understood the