own municipal constitution: this is a principle that springs from the
very nature of society; and the judicial authority can have no right to
question the validity of a law, unless such a jurisdiction is expressly
given by the Constitution."[77] The mere fact that he presented this
argument shows that the view which he afterwards held as Chief Justice
of the United States Supreme Court was not then generally accepted. His
contention on this occasion that the judiciary can not annul an act of
the legislature unless the power be expressly conferred may have been at
variance with the opinion which he really held, but it certainly was
not opposed to what he regarded as the generally accepted view;
otherwise, his argument would have been based on an admittedly false
theory of judicial powers. The conclusion is irresistible that at this
time the right of the judiciary to declare a legislative act null and
void was not generally recognized. The framers of the Constitution
clearly understood that this power was not implied in the sense that it
was then a recognized function of the judiciary, or one necessarily
contained in the Constitution as they interpreted it to the people to
secure its adoption. It was by controlling the Executive and the Senate,
and through these the appointment of Supreme judges, that they expected
to incorporate this power in the Constitution and make it a permanent
feature of our political system.[78]

This purpose is evident in the appointments to the Supreme bench made
during the twelve years of Federalist rule that followed the adoption of
the Constitution. Of the thirteen chief and associate Justices appointed
during this period, five had been members of the Constitutional
Convention.[79] Eleven had been members of the various state
conventions held to ratify the Constitution.[80] Three, as shown by the
records of the federal and state conventions, had unequivocally
expressed themselves in favor of the exercise of this power by the
Supreme Court,[81] while another, James Iredell, had taken an active
part in securing the first reported decision in which an act of a state
legislature was declared null and void by a court on the ground that it
was contrary to a written constitution.[82] Only one in this entire list
had not taken part directly in framing or adopting the Constitution by
serving as a delegate to the federal, or a state convention, or
both.[83] All had been ardent supporters of the Constit