maeva marcus safeguarded, federal courts would have to examine state court decisions to make sure that federal law was interpreted uniformly and that federal rights were upheld. Section 25 of the Judiciary Act of 1789 conferred this power on the Supreme Court, and it aroused little controversy either in Congress or throughout the country at the time.20 While Congress never enacted a statute providing for judicial review of its own statutes or actions of the President, it did make public its faith that the judiciary would exercise that power. Read the debates in Congress over the earliest laws and throughout its first decade. Congressmen consistently raised questions about the constitutional propriety of certain aspects of bills, but they put aside such doubts with the comforting thought that it was not Congress’s problem. The judges would have to decide such issues.21 And experience proved this to be the case. Early in 1792, the federal circuit courts encountered their first opportunity to exercise judicial review, when Congress enacted the Invalid Pensions Act of 1792.22 Because there was no federal bureaucracy, Congress assigned the circuit courts the task of hearing the claims of disabled Revolutionary War veterans and deciding who deserved a pension and in what amount. The courts’ determinations were to be forwarded to the Secretary of War, who would examine them for fraud. He, in turn, would pass on the results of his investigations to Congress, which would have the final word on the composition of the pension lists. All the justices thought that on its face the statute was unconstitutional, but what they did about that differed from circuit to circuit. ed the implied power to void unconstitutional legislation inFederalist No. 78: The Constitution, not the legislature, embodied popular sovereignty, he argued, so courts were necessary to keep the legislators within their limits. Cooke, Jacob E. (ed.) pp. 524-25. 20 U. S. Statutes at Large, vol. 1, pp. 85-87. 21 See the remarks of Rep.William Loughton Smith and Rep. Elbridge Gerry, e.g., during the debate over the establishment of the Department of Foreign Affairs, Annals of Congress, 1st Cong., 1st sess., pp. 470, 504. Debates over the Bank of the United States, Annals of Congress, 1st Cong., 3rd sess., pp. 1916, 1927, 1937, and the Post Office Annals of Congress, 2nd Cong., 1st sess., p. 306 elicited similar comments. Marcus, Maeva 1996 pp. 25-35. 22 An Act to provide for the settlement of the Claims of Widows and Orphans barred by the limitations heretofore established, and to regulate the Claims to Invalid Pensions, March 23, U. S. Statutes at Large, vol. 1, p. 243. 201
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