Article Three of the U.S. Constitution established the federal judiciary, and Section 1 specifically authorizes the Supreme Court. Shortly after the ratification of the Constitution the Judiciary Act of 1789 was passed by Congress, but the anti-Federalists were deeply distrustful of a potent judiciary as an instrument of national tyranny.

That concern is reflected in Federalist 78 (1788), where Alexander Hamilton insisted “the judiciary is beyond comparison the weakest of the three departments of power.” He also argued that “there is no liberty, if the power of judging be not separated from the legislative and executive powers,” which was enshrined in Article Three, the Vesting Clause, which created the separation of powers between government’s three branches.

In a seminal 1819 case, McCullough v. Maryland, the Supreme Court defined the scope of Congressional power and how it’s applied to the authority of state legislatures. The state of Maryland attempted to impose a tax on a national bank, and the court established that the “Necessary and Proper” Clause of the Constitution provides to the federal government certain implied powers not specifically enumerated in the Constitution.

Hamilton then expounds on what’s become known as judicial review. He artfully outlined the predicate: “The interpretation of the laws is the proper and peculiar province of the courts,” because “fundamental law” is implicitly written into the Constitution. Therefore, he continues, “It belongs to them (courts) to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” Counterbalancing that authority, he argued “the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”

Though not in the Constitution, judicial review was effectively codified with the 1803 landmark judicial decision Marbury v. Madison, which included the Supreme Court’s authority over the actions of Congress or the executive branch. But it was by no means unanimously accepted by the Founders, as Thomas Jefferson wrote in an 1820 letter to William Jarvis: “You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy…Their power (is) the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.”

These contrasting views of the rightful role of the judiciary provide ample evidence of the wisdom of the Founders. They understood the need of government, for, as James Madison wrote in Federalist 51, “If men were angels, no government would be necessary,” but they disagreed in important areas such judicial review.

An 1857 case demonstrates that justice is undermined by unenlightened thinking. Dred Scot v. Sanford held not only that persons descended from Africans, whether slave or free, weren’t U.S. citizens and didn’t have legal standing, they were property of their owners, and subject to the due process clause of the Fifth Amendment. This decision abrogated the Missouri Compromise and hastened the start of the Civil War.

A similarly racist case in 1896, Plessy v. Ferguson, held that segregation laws were constitutional as long as the public facilities were equal—the doctrine known as “separate but equal.” The court’s corrective mechanism was in evidence in the 1954 case, Brown v. Board of Education, which ruled that doctrine unconstitutional.

Despite these historical failures, my work on the 4th Judicial Nominating Commission has convinced me that our system provides unparalleled safeguards to our liberties, and confidence that judges hold justice in the highest esteem.

Philip Mella serves on the 4th Judicial District Nominating Commission and is a health care administrator with a passion for history, politics and the written word. He also served on the Woodland Park City Council for seven years. Email Philip at

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