power
should not be exercised by the judiciary.[71] But it was contended on
the other hand by Wilson, Luther Martin, Gerry, Mason, and Madison that
this power could be exercised without any provision expressly conferring
it.[72]

In view of the fact that it was maintained by leading members of the
Convention that this power could and should be exercised by the Federal
judiciary, it is but reasonable to suppose that a majority of that body
wished to confer it; for had this not been the case, the Constitution as
submitted would have contained a provision expressly withholding it. But
however much the Convention may have desired to give to the judiciary
the power to veto legislation, it could not have been done by an express
provision of the Constitution. Any such attempt would have disclosed
altogether too clearly the undemocratic reactionary character of the
proposed government and thus have prevented its adoption. This end was
attained indirectly through the general system of checks which the
Constitution imposed upon the other branches of the government and upon
the people, since it made it possible for the judiciary to assume and
exercise this power.

There is nothing to indicate that the people generally appreciated the
significance of this feature of the Constitution at the time of its
ratification. Outside of the Constitutional Convention the judicial
negative appears to have been seldom mentioned. Hamilton, the most
courageous and outspoken opponent of popular government, claimed, it is
true, that it would be the duty of the Federal courts "to declare all
acts contrary to the manifest tenor of the Constitution void."[73] In a
few of the state conventions held to ratify the Constitution the power
was referred to. Oliver Ellsworth in the Connecticut convention,[74]
James Wilson in the Pennsylvania convention,[75] and John Marshall in
the Virginia convention,[76] expressed the opinion that the Constitution
gave the Supreme Court the power to declare acts of Congress null and
void.

There is no reason for believing, however, that this was the generally
accepted notion at that time. For even Marshall himself a few years
later, as attorney in the case of Ware v. Hylton, which involved the
validity of an act of the legislature of Virginia, appears to have
defended the opposite view before the United States Supreme Court. In
that case he said:

"The legislative authority of any country can only be restrained by its