The central argument between the delegates was whether or not judges should be allowed to be participants on the coucil. On the one hand, some argued that judges should be on the council to prevent Congress from exceeding its granted power (11-12). On the other hand, several delegates believed that it was not necessary for them to be on this council because as federal judges, they were already granted the right of judicial review. This proves that some delegates already believed the powers of judicial review were assumed well before John Marshall was Chief Justice. One delegate compared a judicial system without the power of checks on legislation to the absolute rule of Parliament in Great Britain (Goldstein 65). Both Federalists and anti-Federalists reached an understanding that judicial review was necessary. Eventually, it seemed as though virtually every member of the Constitutional Convention acknowledged the practice of judicial review, yet did not deem it necessary to clearly grant these powers to the Supreme Court (Gunnarson 15). Fifteen years later, when the opinion for Marbury v. Madison had to be written, Marshall voluntarily took advantage of the opportunity to establish a precedent. By basing his opinion on previous models of judicial review, Marshall used the powerful tool of precedent to help further his political party. If Marshall had not established the power of judicial review through this case, he would have missed a crucial opportunity to help empower the Federalists.
At the time preceding the Marbury v. Madison case, the United States was undergoing a critical transformation. For the first time in its history, the political power was switching hands from the Federalists to the Republicans. The Federalists had lost the presidential election, and the Republicans took over many strategic political positions. The federal courts were under a continued attack by newly appointed President Jefferson and the Republican Party who wished to bring the courts under the command of the executive branch.
