The quarrel of those who question the power of the judiciary to review legislative and executive acts is not only with imperial judges but also with the Framers of the Constitution themselves. Although most on the right who criticize judicial activism urge that the Consti- tution ought to be interpreted in accord with its original intent, curiously they rarely have recourse to original intent in ascertaining the proper role of the judiciary. If they did, they would find that the Framers intended the judiciary to play a central and vigorous role in protecting liberty. If judicial activism is defined as courts' striking down unconstitutional laws, then in a very real sense, the Framers were the original judicial activists.1
Judicial review was not an original creation of the American Con- stitution. In England, although courts lacked power to overturn acts of Parliament, they often did invalidate acts of the crown and of local governments. Likewise, early American state courts frequently struck down laws under their own state constitutions.2 Hence the Framers were acutely aware of the important role of the courts in protecting liberty.
The idea of an independent judiciary empowered to strike down laws as unconstitutional emanated from two core principles. First, the Framers believed that the ultimate expression of popular sover- eignty was the organic law, the Constitution, to which all govern- mental actions and democratic processes were subordinate .3 Second, the Framers recognized that the tendency of the legislative and executive branches to expand their powers was inherent in the nature of republican government. That process sometimes violated the rights of individuals and therefore necessitated such checks as the separation of powers, federalism, and an independent judiciary with the power of judicial review.
The dangers of excessive democracy were keenly understood by James Madison, the principal drafter of the Constitution. In a letter