98 made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the UnitedStates, shall be the supreme Lawof the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” That clause - combined with Article III, which names the courts as final interpreters of the law— makes it a necessity for federal courts to exercise the power of judicial reviewat least in regard to conflicts between state and federal law. But Alexander Hamilton, in his famous Federalist No. 78, extended the theory of judicial review further so that it covered acts of Congress as well as acts of the state legislatures. Hamilton wrote that it was the duty of the courts “to declare all acts contrary to the manifest tenor of the constitution void.” “The interpretation of the laws,” Hamilton continued, “is the proper and peculiar province of the courts. Aconstitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to themto ascertain its meaning as well as the meaning of any particular act proceeding fromthe legislative body. If there should happen to be an irreconcileable 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.” In the first decade after the Constitution was ratified, federal judges exercised their power of judicial review with regard to both state and national legislation on a number of occasions, sometimes finding a conflict but more frequently upholding the actions of the legislatures. The political branches of government accepted the Court’s role; in fact, when for the first time the Supreme Court justices on circuit found an act of Congress unconstitutional. Congress enacted a new law to meet the judges’ objections at the next session of Congress. Of course during the initial ten years of the American government the executive, legislative, and judicial branches were controlled by the same political party, the Federalists. As time went on, however, more causes of political disagreement appeared, control of the branches was divided between two political parties, and the practice of judicial review changed accordingly. The earliest example we have of this change is the famous case of Marbury v. Madison. Marhury is cited as the cornerstone of the American practice of judicial review. It is the first case in which the Supreme Court, speaking unanimously through Chief JusticeJohn Marshall, explicitly held an act of Congress unconstitutional and asserted the power of the judiciary to order a cabinet officer to perform duties assigned to him by the legislature. Although Marbury is celebrated for its ringing affirmation of the doctrine of judicial review, what is often overlooked is that that affirmation was enunciated as part of a political response that recognized the weakness of the Supreme Court at this moment in its history. The facts in Marbury are well known. Federalist William Marbury had been
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