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 � 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
