97 treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the Courts of the United States in cases where they apply.” While the First Congress may well have intended “laws of the several States” merely as a shorthand for all the laws then in effect, including the unwritten common law of each state, it is equally possible that the framers meant “laws” to refer only to statutes, leaving the federal courts free to fashion common law remedies of their own. Even if the drafters did intend that “laws” include the common law of the several states, they may have wished merely to permit, not to compel, the federal trial courts to apply state common law. Still another possibility is that the Judiciary Act’s framers deliberately worded the provision vaguely so as to leave its meaning open to future judicial interpretation. Whatever its intended meaning, there can be no doubt that the thirty-fourth section was written, like the other sections of the act, in the spirit of reconciling national interests with those of the various states. Of course, this did not make for a uniformnational standard of justice. Common lawcases with identical facts brought in federal courts would have different results depending on the state in which the federal court was located. And the basic principle that federal courts apply state lawto non-federal questions remains a feature of the federal court system to this day. In the years after 1789 many of the problems spawned by the compromises reached in the attempt to accommodate national and state interests were solved. But by far the most important development after 1789 was the acceptance by the American people of the idea that the Supreme Court in particular, and federal judges generally, would performthe function of judicial review. Judicial review in the United States is the practice by which federal judges, where necessary to decide cases brought before them, determine whether federal and state legislation and the actions of federal and state executive officers and courts conflict with the United States Constitution. What is most surprising to students of the American systemof government is that the words “judicial review” are not explicitly mentioned in the Constitution, and this has cast doubt on the legitimacy of the practice. Critics of judicial reviewhave argued over the years that if judicial review is so critical to the operation of the constitutional order, it should have been included expressly in the Constitution. But there were solid political reasons why the framers of the Constitution did not provide for judicial review in explicit terms. Proponents of the Constitution did not want to bring the issue to the attention of states’ rights supporters if it could be avoided. If judicial reviewcould be inferred from the text of the Constitution, that would as well serve the purposes of the framers in forming the new government. As to state legislation, judicial review is more readily inferred fromthe Constitution. The supremacy clause of the Constitution (Article VI, Section 2) dedares, “This Constitution, and the Laws of the United States which shall be 8
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