Best,
Louise
At 11:05 p.m. central time, Bill Funk wrote: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
At 01:43 PM 8/14/03, you wrote:
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.
