Re: The Original Meaning of the Judicial Power
John, I had not intended my assertion that the Supremacy Clause trumped state laws to be a strong assertion that it did not apply to federal statutes. I will tone down any language that suggests it exclusively applies to federal statutes. Thanks for pointing this out. Randy _ Randy E. Barnett Austin B. Fletcher Professor Boston University School of Law 765 Commonwealth Ave. Boston, MA 02215 617-353-3099 (phone) 617-353-3077 (fax) http://www.RandyBarnett.com http://www.LysanderSpooner.org (Lysander Spooner page) http://www.RandyBarnett.com/SOL.htm (Structure of Liberty page) -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Eastman, John Sent: Monday, August 25, 2003 10:23 PM To: [EMAIL PROTECTED] Subject: Re: The Original Meaning of the Judicial Power Randy, I've just had a chance to read your paper on Marbury, which has in part pre-empted my own on a similar subject, to be delivered at the APSA this coming Saturday Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World? In general, I agree with your conclusions, and with the historical evidence upon which you rely to reach them. I am curious, though, about your repeated assertions that the supremacy clause applies only to state laws. I had long thought the initial part of the clause, and the laws of the United States which shall be made in Pursuance thereof, (namely, in pursuance of the Constitution), expressly applied the Constitution's supremacy to acts of Congress not in accord with it. (Closer question on the Treaty clause, but my own review has convinced me that the different language there was not intended to result in a different outcome vis-a-vis the supremacy of the Constitution, but rather was simply designed to keep in effect treaties that had been entered into before 1787). You seem to think the text does not apply to acts of Congress (though, as a structural matter, you think it must). Has your own research suggested a different reading of in Pursuance thereof than I am assigning to it? Much obliged, John John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message- From: Randy Barnett [mailto:[EMAIL PROTECTED] Sent: Thursday, August 21, 2003 8:04 AM To: [EMAIL PROTECTED] Subject: The Original Meaning of the Judicial Power As I promised, I now have a link to my paper, The Original Meaning of the Judicial Power. It is only 22 pages. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=437040 Here is the abstract: In this paper, I refute any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. I will do so, not by discerning the shadowy and often counterfactual intentions of the founding generation, but by presenting as comprehensively as I can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress. In short, I shall demonstrate that the original meaning of the judicial power in Article III, included the power of judicial nullification. Many constitutional scholars who do not consider themselves to be originalists nevertheless acknowledge that originalism provides the starting point of constitutional interpretation or at least is a factor to be considered among others. It is equally important that these nonoriginalists are made aware of the substantial evidence that the original meaning of the judicial power included the power to nullify unconstitutional laws. _ Randy E. Barnett Austin B. Fletcher Professor Boston University School of Law 765 Commonwealth Ave. Boston, MA 02215 617-353-3099 (phone) 617-353-3077 (fax) http://www.RandyBarnett.com http://www.LysanderSpooner.org (Lysander Spooner page) http://www.RandyBarnett.com/SOL.htm (Structure of Liberty page) -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of guayiya Sent: Wednesday, August 20, 2003 5:30 PM To: [EMAIL PROTECTED] Subject: Re: Marbury Marshall determined that Marbury's appointment was complete and irrevocable despite his nonpossession of a commission, but that the Supreme Court lacked jurisdiction to issue a mandamus. Why, pray tell, did Marshall not simply proceed to swear him into office? Dan Hoffman Edward A Hartnett wrote: We seem to have this discussion every year or so -- but it is a discussion worth having every year or so. To summarize my takeaway from those discussions and some
Re: The Original Meaning of the Judicial Power
My apologies to the list. I had thought John's message to me was off-list, as was supposed to be my response. My reply was dashed off too quickly before bed. Upon reviewing what I wrote in my paper and the Supremacy Clause, I still think the Clause makes the Constitution and the Laws of the United States EXPRESSLY supreme over only state laws, and only implicitly (if at all) supreme over the laws of the United States made pursuant thereof. Anyhow, for those who have not been following this since last week, this all relates to my article on SSRN on The Original Meaning of the Judicial Power. My point in the paper was that even the express supremacy over state laws is only implicit support for the power of judicial review of state laws by the route of constitutional construction. Direct evidence that the power of judicial nullification exists is provided by originalist sources. Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=437040 I have no stake in either position, so I am open to anyone who wants to argue--either on-list or off-list--that the Supremacy Clause applies expressly to federal as well as to state laws. Again, my apologies for my precipitous posting. Randy _ Randy E. Barnett Austin B. Fletcher Professor Boston University School of Law 765 Commonwealth Ave. Boston, MA 02215 617-353-3099 (phone) 617-353-3077 (fax) http://www.RandyBarnett.com http://www.LysanderSpooner.org (Lysander Spooner page) http://www.RandyBarnett.com/SOL.htm (Structure of Liberty page) -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Randy Barnett Sent: Monday, August 25, 2003 11:46 PM To: [EMAIL PROTECTED] Subject: Re: The Original Meaning of the Judicial Power John, I had not intended my assertion that the Supremacy Clause trumped state laws to be a strong assertion that it did not apply to federal statutes. I will tone down any language that suggests it exclusively applies to federal statutes. Thanks for pointing this out. Randy _ Randy E. Barnett Austin B. Fletcher Professor Boston University School of Law 765 Commonwealth Ave. Boston, MA 02215 617-353-3099 (phone) 617-353-3077 (fax) http://www.RandyBarnett.com http://www.LysanderSpooner.org (Lysander Spooner page) http://www.RandyBarnett.com/SOL.htm (Structure of Liberty page) -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Eastman, John Sent: Monday, August 25, 2003 10:23 PM To: [EMAIL PROTECTED] Subject: Re: The Original Meaning of the Judicial Power Randy, I've just had a chance to read your paper on Marbury, which has in part pre-empted my own on a similar subject, to be delivered at the APSA this coming Saturday Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World? In general, I agree with your conclusions, and with the historical evidence upon which you rely to reach them. I am curious, though, about your repeated assertions that the supremacy clause applies only to state laws. I had long thought the initial part of the clause, and the laws of the United States which shall be made in Pursuance thereof, (namely, in pursuance of the Constitution), expressly applied the Constitution's supremacy to acts of Congress not in accord with it. (Closer question on the Treaty clause, but my own review has convinced me that the different language there was not intended to result in a different outcome vis-a-vis the supremacy of the Constitution, but rather was simply designed to keep in effect treaties that had been entered into before 1787). You seem to think the text does not apply to acts of Congress (though, as a structural matter, you think it must). Has your own research suggested a different reading of in Pursuance thereof than I am assigning to it? Much obliged, John John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message- From: Randy Barnett [mailto:[EMAIL PROTECTED] Sent: Thursday, August 21, 2003 8:04 AM To: [EMAIL PROTECTED] Subject: The Original Meaning of the Judicial Power As I promised, I now have a link to my paper, The Original Meaning of the Judicial Power. It is only 22 pages. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=437040 Here is the abstract: In this paper, I refute any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. I will do so, not by discerning the shadowy and often counterfactual intentions of the founding generation, but by presenting as comprehensively as I can what the founders actually said during the constitutional convention, in state ratification
Re: The Original Meaning of the Judicial Power
Well, the apology really is mine, as Randy only responded to what appeared to be an off-list question, as indeed I had intended it to be. I guess we all get one shot at this error -- though I am glad that mine exposed nothing impertinent! (Not that they ever would, of course!). Indeed, if anyone on the list has additional insight into the made in Pursuance thereof of the Supremacy Clause, I would very much like to hear it. John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message- From: Randy Barnett [mailto:[EMAIL PROTECTED] Sent: Monday, August 25, 2003 9:11 PM To: [EMAIL PROTECTED] Subject: Re: The Original Meaning of the Judicial Power My apologies to the list. I had thought John's message to me was off-list, as was supposed to be my response. My reply was dashed off too quickly before bed. Upon reviewing what I wrote in my paper and the Supremacy Clause, I still think the Clause makes the Constitution and the Laws of the United States EXPRESSLY supreme over only state laws, and only implicitly (if at all) supreme over the laws of the United States made pursuant thereof. Anyhow, for those who have not been following this since last week, this all relates to my article on SSRN on The Original Meaning of the Judicial Power. My point in the paper was that even the express supremacy over state laws is only implicit support for the power of judicial review of state laws by the route of constitutional construction. Direct evidence that the power of judicial nullification exists is provided by originalist sources. Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=437040 I have no stake in either position, so I am open to anyone who wants to argue--either on-list or off-list--that the Supremacy Clause applies expressly to federal as well as to state laws. Again, my apologies for my precipitous posting. Randy _ Randy E. Barnett Austin B. Fletcher Professor Boston University School of Law 765 Commonwealth Ave. Boston, MA 02215 617-353-3099 (phone) 617-353-3077 (fax) http://www.RandyBarnett.com http://www.LysanderSpooner.org (Lysander Spooner page) http://www.RandyBarnett.com/SOL.htm (Structure of Liberty page) -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Randy Barnett Sent: Monday, August 25, 2003 11:46 PM To: [EMAIL PROTECTED] Subject: Re: The Original Meaning of the Judicial Power John, I had not intended my assertion that the Supremacy Clause trumped state laws to be a strong assertion that it did not apply to federal statutes. I will tone down any language that suggests it exclusively applies to federal statutes. Thanks for pointing this out. Randy _ Randy E. Barnett Austin B. Fletcher Professor Boston University School of Law 765 Commonwealth Ave. Boston, MA 02215 617-353-3099 (phone) 617-353-3077 (fax) http://www.RandyBarnett.com http://www.LysanderSpooner.org (Lysander Spooner page) http://www.RandyBarnett.com/SOL.htm (Structure of Liberty page) -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Eastman, John Sent: Monday, August 25, 2003 10:23 PM To: [EMAIL PROTECTED] Subject: Re: The Original Meaning of the Judicial Power Randy, I've just had a chance to read your paper on Marbury, which has in part pre-empted my own on a similar subject, to be delivered at the APSA this coming Saturday Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World? In general, I agree with your conclusions, and with the historical evidence upon which you rely to reach them. I am curious, though, about your repeated assertions that the supremacy clause applies only to state laws. I had long thought the initial part of the clause, and the laws of the United States which shall be made in Pursuance thereof, (namely, in pursuance of the Constitution), expressly applied the Constitution's supremacy to acts of Congress not in accord with it. (Closer question on the Treaty clause, but my own review has convinced me that the different language there was not intended to result in a different outcome vis-a-vis the supremacy of the Constitution, but rather was simply designed to keep in effect treaties that had been entered into before 1787). You seem to think the text does not apply to acts of Congress (though, as a structural matter, you think it must). Has your own research suggested a different reading of in Pursuance thereof than I am assigning to it? Much obliged, John John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message- From: Randy Barnett [mailto:[EMAIL PROTECTED] Sent: Thursday, August 21, 2003
Re: The Original Meaning of the Judicial Power
I've just read Prof. Barnett's paper, and I urge others to read it. It helped me put to rest some issues surrounding judicial review. However, I have a few comments: 1. Prof. Barnett argues that Morris claimed that the new Constitution could not be ratified by the state legislatures under the terms of the Articles of Confederation. See p. 7. This is not true. Morris was arguing that UNANIMITY of the states would be required -- not that state legislatures per se could not form a constitution. Furthermore, Morris in arguing for judicial nullification made two references to the federal compact. The first reference to the federal compact was the Articles of Confederation -- not the Constitution. His language arguing for judicial nullification referred to the Articles. (Recall that the Articles provided for courts and boards of commissioners to resolve conflicts between the states.) 2. Prof. Barnett claims that Madison (p. 7) argued that there was a difference between a confederation and a constitution, and that the difference was that a constitution was binding law on judges unlike a treaty. This is not quite what Madison was arguing. First of all, it is important to recognize that the Articles of Confederation also was a constitution (also establishing a federal government). The Framers expressly recognized this. See, e.g., Act of the Annapolis Convention at para. 11; The Federalist No. 40 (Madison) at ΒΆ 4 (1788) (citing same language). Much ado is made of Madison's distinction between the Constitution and a treaty. The distinction that Madison was -- very awkwardly- making was just that the Constitution was not MERELY a league, like the Hanseatic League. For that matter, neither was the Articles of Confederation merely a league -- even if it stated that it was establishing a league of friendship. The Articles (like the Constitution) was more than a league -- they were both constitutions establishing different -- but both federal -- governments. Second, when Madison makes a distinction between how judges could view laws violating a treaty and a constitution, he is making the distinction in terms of the political operation (as he puts it) of such judicial acts -- not the underlying legal validity of such acts. He immediately continues with a discussion of the law of treaties (how appropriate!), and how this law allows states-parties to a treaty to not observe their treaty obligations when another state-party violates the treaty. (Unfortunately, he misstates the law. In the 18th century, the law of treaties stated that violation of a multilateral treaty (such as the Articles or the Constitution) by one state-party did not allow the other states-parties to dissolve the treaty. Madison incorrectly was applying the rule (which was not even accepted by all international jurists at the time) for bilateral treaties.) 3. However, I believe that Madison's inter-related discussion of judicial nullification, the Constitution, and treaties highlights a very important conceptual connection: judicial nullification is legally and customarily tied to treaty law. What can legally stop a state-party from not complying with their treaty obligations when the state believes that another state or the intergovernmental legislature has violated the treaty? The answer is that treaties often would (and still do) provide for the establishment of international tribunals or boards of commissioners to settle inter-state conflicts and declare whether the treaty has been violated by either a state-party or the intergovernmental body itself. This remedy prevents states from seceding from their intergovernmental organization on the basis of an alleged treaty violation by another state-party. Such a judicial remedy also was provided by the Articles of Confederation and the Constitution. When states fail to use an international tribunal to settle their differences, the intergovernmental organizations often fail. For example, even the Confederate Constitution provided for a supreme court but it was never established. As a result, southern states often refused to comply with their constitutional obligations, and some North Carolinians considered establishing a state convention to secede from the Confederacy. Francisco Forrest Martin
Re: The Original Meaning of the Judicial Power
I thank Professor Martin for his close reading of my paper and will reconsider the two characterizations by which I introduce the quotes from Madison and Morris in light of his comments.This is the great thing about posting articles prepublication. However, I should emphasize that I presented these two quotes, not to make the claims with which Professor Martin helpfully disagrees, but solely because they both presuppose the power to judicially nullify unconstitutional laws. Cheers, Randy _ Randy E. Barnett Austin B. Fletcher Professor Boston University School of Law 765 Commonwealth Ave. Boston, MA 02215 617-353-3099 (phone) 617-353-3077 (fax) http://www.RandyBarnett.com http://www.LysanderSpooner.org (Lysander Spooner page) http://www.RandyBarnett.com/SOL.htm (Structure of Liberty page)
