The case of Trevett v. Weeden, decided by the Superior Court of Judicature of Rhode Island in September, 1786, is said to be the first in which a law was declared null and void on the ground that it was unconstitutional.[66] The court in this case did not expressly say that the law in question was unconstitutional and therefore void, but it refused to recognize its validity. The power which the court exercised to ignore a legislative act was promptly repudiated by the law-making body, and at the expiration of their term of office a few months later, the judges responsible for this decision were replaced by others. In 1786 or 1787 a case was decided in Massachusetts, and also one in New Jersey, in which it is claimed that the court declared a legislative act null and void.

The first reported case in which an act of a legislature was held to be contrary to a written constitution is that of Bayard v. Singleton, decided by the Superior Court of North Carolina in May, 1787. James Iredell, afterward a member of the North Carolina convention, held to ratify the Constitution, and a judge of the United States Supreme Court, and William R. Davie, one of the framers of the Constitution, were attorneys for the plaintiff, the party in whose interest the law was declared unconstitutional. This decision received much adverse criticism at the time. The judges "were fiercely denounced as usurpers of power. Spaight, afterwards governor, voiced a common notion when he declared that 'the state was subject to the three individuals, who united in their own persons the legislative and judicial power, which no monarch in England enjoys, which would be more despotic than the Roman triumvirate and equally insufferable.'"[67]

Iredell, in a letter to Spaight written August 26, 1787, defended the decision as a means of limiting the power of the majority. "I conceive the remedy of a new election," he says, "to be of very little consequence, because this would only secure the views of a majority...."[68] Iredell expressed what was no doubt the real purpose of the judicial veto—the limitation of the power of the majority.

In eight of the thirteen states the doctrine that the judiciary could refuse to enforce laws regularly enacted by the legislative body had not even been asserted by the courts themselves, much less recognized and accepted by the people generally. There is no evidence to warrant the belief that this power was anywhere claimed or exercised in response to a popular demand or that it had at this time become a firmly established or generally recognized feature of any state government.

This being the case, there is no ground for the contention that the power to annul acts of the legislature was necessarily implied in the general grant of judicial authority contained in the Constitution. Moreover, it was not expressly conferred, for the Constitution as submitted and ratified contains no reference to this power.

"There is no provision in the Constitution of the United States ... which clothes the judiciary with the power to declare an act of the legislature generally null and void on account of its conceived repugnance to the Constitution or on any other account."[69]

It has been claimed that in this respect our general government is even less democratic than the framers of the Constitution intended. This view, however, is not borne out by the facts. The assertion of this far-reaching power by our national judiciary, though not expressly authorized by the Constitution, was nevertheless in harmony with the general spirit and intention of its framers. That the members of the Constitutional Convention declined to confer this power in unequivocal language does not justify the inference that they did not wish and intend that it should be exercised by the courts.

Gouverneur Morris, who claims to have written the Constitution with his own hand, tells us that in framing that part of it relating to the judiciary, "it became necessary to select phrases," which, expressing his own views, "would not alarm others."[70] There was, it is true, some objection in the Convention to the doctrine that the Supreme Court should have authority to decide upon the constitutionality of Congressional legislation. Mercer and Dickinson believed that this power should not be exercised by the judiciary.[71] But it was contended on the other hand by Wilson, Luther Martin, Gerry, Mason, and Madison that this power could be exercised without any provision expressly conferring it.[72]

In view of the fact that it was maintained by leading members of the Convention that this power could and should be exercised by the Federal judiciary, it is but reasonable to suppose that a majority of that body wished to confer it; for had this not been the case, the Constitution as submitted would have contained a provision expressly withholding it. But however much the Convention may have desired to give to the judiciary the power to veto legislation, it could not have been done by an express provision of the Constitution. Any such attempt would have disclosed altogether too clearly the undemocratic reactionary character of the proposed government and thus have prevented its adoption. This end was attained indirectly through the general system of checks which the Constitution imposed upon the other branches of the government and upon the people, since it made it possible for the judiciary to assume and exercise this power.

There is nothing to indicate that the people generally appreciated the significance of this feature of the Constitution at the time of its ratification. Outside of the Constitutional Convention the judicial negative appears to have been seldom mentioned. Hamilton, the most courageous and outspoken opponent of popular government, claimed, it is true, that it would be the duty of the Federal courts "to declare all acts contrary to the manifest tenor of the Constitution void."[73] In a few of the state conventions held to ratify the Constitution the power was referred to. Oliver Ellsworth in the Connecticut convention,[74] James Wilson in the Pennsylvania convention,[75] and John Marshall in the Virginia convention,[76] expressed the opinion that the Constitution gave the Supreme Court the power to declare acts of Congress null and void.