[Jacquerie]

The surprise in today’s debate isn’t the discussion of Congressional veto over State law, but how James Madison, Governeur Morris and Roger Sherman viewed what we call Judicial Review as inherent within the Judicial Power. It will come up again, not as a point of contentious debate, but like today, where no one stood up to disagree.

Mr. Morris: “A law that ought to be negatived will be set aside in the Judiciary departmt. and if that security should fail; may be repealed by a Nationl. law.”

Mr. Madison: “They can [FN14] pass laws which will accomplish their injurious objects before they can be repealed by the Genl. Legislre. or be [FN15] set aside by the National Tribunals.

Mr. Sherman: “Thought it unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union, and which the legislature would wish to be negatived.

From this standpoint, the later 19th century enshrinement of Marbury v. Madison was superfluous.

[greeneyes]

Certainly the concept of Judicial review was well established before the constitutional convention, and I suppose that is why there was no explicit authorization of the power of judicial review in the constitution.

The Supreme Court, in fact practiced judicial review before the Marbury vs Madison Case, so while it may have been superfluous, it was the first time under the new government that a law was declared unconstitutional, and hence a landmark of sorts.

I think the verdict of cases such as Roe v Wade show that the concerns of the anitfederalists were not unfounded regarding the judiciary.