The generation that framed the Constitution presumed that courts would declare void legislation that was repugnant or contrary to the Constitution. They held this presumption because of colonial American practice. By the early seventeenth century, English law subjected the by-laws of corporations to the requirement that they not be repugnant to the laws of the nation. The early English settlements in Virginia and Massachusetts were originally corporations and so these settlements were bound by the principle that colonial legislation could not be repugnant to the laws of England. Under this standard, colonial lawyers appealed approximately 250 cases from colonial courts to the English Privy Council, and the Crown reviewed over 8500 colonial acts.
After the American Revolution, this practice continued.
State court judges voided state legislation inconsistent with their respective state constitutions. The Framers of the Constitution similarly presumed that judges would void legislation repugnant to the United States Constitution. Although a few Framers worried about the power, they expected it would exist. As James Madison stated, “A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.”
In fact, the word “Constitution” in the Supremacy Clause and the clause describing the Supreme Court’s jurisdiction appeared to give textual authorization for judicial enforcement of constitutional constraints on state and federal legislation. Indeed, before
Marbury, Justice Chase observed that although the Court had never adjudicated whether the judiciary had the authority to declare laws contrary to the Constitution void, this authority was acknowledged by general opinion, the entire Supreme Court bar, and some of the Supreme Court Justices.
The Yale Law Journal Online - Why We Have Judicial Review
