Although each State had its own State Constitution and a Judiciary tasked with upholding the Constitution, State laws that violated the Federal Constitution could be overturned by a Federal court.
The Power of the Judiciary Relative the Legislative and Executive Branches
The Framers of the Constitution viewed the Judiciary as a Check on the other two branches, not necessarily as a dynamic force in itself. In the Federalist Paper No. 78, James Madison wrote that "…the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution . . . [it] may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." (Federalist No. 78)
Although the Framers believed that the Judiciary was meant to have a limited role, it did appear, as Justice Marshall implied, that the Supreme Court was meant to be the mouthpiece for the Constitution. "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, the intention of the people to the intention of their agents." (Federalist No. 78)
The Judiciary and its Relationship with the Popular Electorate
The Judiciary is the only branch of the Federal Government not popularly elected. The Federal Judiciary is appointed by the President, the head of the Executive Branch. The appointment must also gain the approval of Congress before becoming effective. However, at no point in the process does the popular electorate have a say. In a very important sense, the Judiciary can be seen as the least democratic of the three branches of government.
The insulation of the Supreme Court from popular opinion is unsettling when one considers that the Supreme Court has the power to strike down the laws of a popularly elected Congress. This creates the possibility that the popular electorate has no say in a critical phase of the legislative process. For example, if there were a very activist Supreme Court which overturned many laws that...
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