Re: Marshall & Upholding Federal Statutes

[Louise Weinberg]

Dear Francesco,
        There are instances in the Virginia and Pennsylvania ratification debates, in the Constitutional Convention, and in the Federalist Papers.  I reviewed these materials in another connection for a forthcoming article on Marbury.  I can send you the draft of that section off list if you like.  You would be struck by the easy understanding that seems to have prevailed at the time that courts would strike down unconstitutional legislation.  I wasn't trying to make that point, so the section may not contain everything available on it.
Best,
Louise


At 12:01 PM 8/14/03, you wrote:

Could you give us a few cites from the writings of the Founders recognizing judicial nullification of unconstitutional federal laws?
 
Francisco Forrest Martin
 
 

----- Original Message -----

From: Randy Barnett

To: [EMAIL PROTECTED]

Sent: 8/14/2003 12:44:54 PM

Subject: Re: Marshall & Upholding Federal Statutes

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.

 

Randy

_____________________________________________

Randy E. Barnett

Austin B. Fletcher Professor

Boston University School of Law

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