ord
contemporaneously, though not always in the Convention itself, as
accepting the idea.[258]

HAMILTON'S ARGUMENT

The argument for judicial review of acts of Congress was first
elaborated in full by Alexander Hamilton in the Seventy-eighth Number of
_The Federalist_ while the adoption of the Constitution was pending.
Said Hamilton: "The interpretation of the laws 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 must therefore belong 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, the
intention of the people to the intention of their [legislative]
agents."[259] It was also set forth as something commonly accepted by
Justice Iredell in 1798 in Calder _v._ Bull[260] in the following words:
"If any act of Congress, or of the Legislature of a state, violates
those constitutional provisions, it is unquestionably void; though, I
admit, that as the authority to declare it void is of a delicate and
awful nature, the Court will never resort to that authority, but in a
clear and urgent case." And between these two formulations of the
doctrine, the membership of the Supreme Court had given it their
sanction first individually, then as a body. In Hayburn's Case,[261] the
Justices while on circuit court duty refused to administer the Invalid
Pensions Act,[262] which authorized the circuit courts to dispose of
pension applications subject to review by the Secretary of War and
Congress on the ground that the federal courts could be assigned only
those functions such as are properly judicial and to be performed in a
judicial manner. In Hylton _v._ United States,[263] a made case in which
Congress appropriated money to pay counsel on both sides of the
argument, the Court passed on the constitutionality of the carriage tax
and sustained it as valid, and in so doing tacitly assumed that it had
the power to review Congressional acts.

MARBURY _v._ MADISON

All the above developments were, however, only preparatory. Judicial
review of acts of Congress was made Constitutional Law, and thereby the
cornerstone of American constitutionalism, by the