[Viva Le Dissention]

I'm not sure I understand what you're saying--are you saying that the Founders didn't intend the judicary to have the power of judicial review?

Again, Federalist 78 is relevant.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

While it's true that the Court never exercised this power until 1803, and even then sparingly after, I think it was always in the view of the Founders that the Court would be the logical branch to resolve constitutional disputes.

[swilhelm73]

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson 1815

"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." --Thomas Jefferson 1804

"In a government whose vital principle is responsibility, it never will be allowed that the Legislative and Executive Departments should be compleatly subjected to the Judiciary, in which that characteristic feature is so faintly seen." -- James Madison 1809

While Hamilton, the writer you are quoting, favored judicial review, the founders as a whole did *not*. Most notably, see the quotes above from two of the principals in the writing of the DOI and Constitution respectively.

Perhaps most importantly, you will note the Constitution is silent in listing such a power, most notably;

"Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. " -- Article III, US Constitution

And on Marbury v Madison;

"The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since." -- Melvin I. Urofsky

Now, in some ways this is a moot point - I don't have much of a problem with true judicial review, as I noted earlier, and it survived as the judicial paradigm for the most part for about 150 years or so (one can find limited examples of judicial legislation in the period right before the CW though too).

However, I make this point specifically because the left uses judicial review - a power not granted in the Constitution, but one that can work within in it - to make the bridge to judicial legislation.