I just want to underscore the importance of the distinction Bill makes here, and add that it is precisely this distinction that (a) helps reconcile judicial review with separation of powers, in the sense that it (b) makes it clear that judicial review is anchored in the performance of the judicial function (what might be called cases "of a judiciary nature" as opposed to a free-floating power to pass on the constitutionality of all government practices), and thus (c) takes the sting out of complaints about judicial supremacy.
Howard Gillman USC ----- Original Message ----- From: Bill Funk <[EMAIL PROTECTED]> Date: Thursday, August 14, 2003 11:43 am Subject: Re: Marshall & Upholding Federal Statutes > Randy Barnett wrote: > > > I have an article now pending at law reviews called, "The Original > > Meaning of the Judicial Power," in which I respond to Leonard Levy and > > others who claim that judicial nullification of unconstitutional laws > > was not established at the time of the founding. The evidence from > > the constitutional convention, ratification conventions (and some > > other authorities) shows that speakers--whether supporters or > > opponents of the Constitution--uniformly assumed that the judicial > > power included the power to nullify unconstitutional laws. > > > Emails are often not the place we are most precise in our wording, but I > was wondering if Randy's article really addresses whether courts can > "nullify" unconstitutional laws, or whether courts will simply not give > effect to unconstitutional laws in cases pending before them, which is > what the Court did in Marbury as well as Dred Scott. Where resort to a > court would be necessary to enforce a law, a court's decision not to > give effect to a law deemed unconstitutional might effectively nullify > it, but I think there is a distinction that should be made between the > refusal to give effect to an unconstitutional law in a case before a > court and the assertion of a power ex proprio vigore to nullify laws for > all purposes. Cooper v. Aaron might go so far, but I don't see it in > the early cases or Founders' discussion of judicial review. > > Bill Funk > Lewis & Clark Law School >
