After the Constitution had been drafted, it was submitted to the states for ratification. It had quite a few opponents, called the Anti-Federalists. They argued that the proposed government would have too much power and would become a danger to the people’s rights. Most of their fire was aimed at Articles I and II, which created the legislative and executive branches, but some Anti-Federalists also expressed fears that the judiciary in Article III could become a menace. Seeking to allay all such fears, the Constitution’s proponents wrote 85 essays known as The Federalist Papers.
In Federalist 78, Alexander Hamilton defended the judiciary, calling it “the least dangerous branch” since it would have neither the legislature’s control over spending nor the executive’s power of enforcement. Hamilton argued that judicial review, the ability of a court (in this case the Supreme Court) to invalidate legislation passed by a legislature (in this case Congress) posed no threat to the rights of Americans, but was essential in protecting them against possible encroachments by the political branches.
So how has judicial review worked out?