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. After reading these statements there is really no doubt that this power was included in the original meaning of the text of the Constitution. I will post a link when it is up on SSRN.
Unsolicited testimonial: I have recently read the manuscript of Randy's forthcoming book, Restoring the Lost Constitution (Princeton University Press), and it is terrific. It is the best defense of a libertarian reading of the Constitution that I have read, and it also presents a thoughtful and nuanced defense of originalism. I can't say that he has persuaded me on the latter, not least because originalism just doesn't describe our practice of constitutional law. As for the libertarian argument, there is much to wrestle with. No one interested in constitutional theory should fail to read (and ponder) the book. It has the virtue, incidentally, of being remarkably well written, so it can also be assigned to one's students without fear that they will feel lost.
sandy
