Posted by Randy Barnett:
Simply Devastating:
One of the things I really enjoy about a pool-side vacation is how
much work I am able to get done. The highlight of this weekend in
Tucson was reading two articles, each of which devastates its target,
which in both cases happens to be Larry Kramer.
The first is "The Origins of Judicial Review" [70 U. Chi L. Rev. 887
(2003)] by Sai Prakash (San Diego) and John Yoo (Boalt)
(prepublication version available on SSRN [1]here). Given the state of
the historical record, it now amazes me that anyone can still argue
that judicial review was made up by John Marshall in Marbury v.
Madison. Among those who have is Larry Kramer (now the Dean of
Stanford Law School) in a much discussed 2001 Foreword to the Harvard
Law Review. Recently, I offered what I thought was a persuasive case
for concluding that judicial review was included in the "judicial
power" [2]here. But Sai and John go way beyond what I presented in
this comprehensive treatment of text, structure, and historical
context. I was particularly struck by these claims which comport with
my research:
[N]o scholar has been able to cite any Federalist or
Anti-Federalist who declared that the Constitution did not permit
judicial review of federal legislation. (928)
[N]o scholar to date has identified even one participant in the
ratification fight who argued that the Constitution did not
authorize judicial review of federal statutes. This silence in the
fact of the numerous comments on the other side is revealing. (974)
This reminds me of the debate over the Second Amendment where no
proponent of either the collective rights or
militia-conditioned-individual rights position can cite a single
contemporary before, during or immediately after ratification who
actually held the view of the Second Amendment they claim everyone
held at the founding.
In his recent book, [3]The People Themselves: Popular
Constitutionalism and Judicial Review, Dean Kramer no longer makes the
argument that judicial review is contrary to the original meaning of
the Constitution. The arguments he does make are brilliantly critiqued
by Larry Solum and Larry Alexander in "Popular? Constitutionalism?"
118 Harv. L. Rev. 1594 (2005). (prepublication version available on
SSRN [4]here.) Their analysis is substantively rich, but I like the
rhetoric too. My favorite is:
Constitutional theory necessarily operates at a high level of
abstraction. Things become cloudy up there in the troposphere, and
some vagueness and ambiguity are likely unavoidable. But as
articulated by Kramer, "popular constitutionalism" lacks even the
articulation and relatively sharp definition of a cumulus cloud in
the lower atmosphere. Instead Kramer's "popular constitutionalism"
is the cirrus cloud of constitutional theory: floating in a
rarefied atmosphere at the very highest level of abstraction,
popular constitutionalism is thin and wispy. (1618-19)
Followed up later by:
We have looked at popular constitutionalism from both sides now,
from up and down, but still somehow, it is cloud illusion we
recall; we really didn't find a theory at all. (1628)
Ouch. If you have access to Lexis or Westlaw, check them out. Or read
the SSRN versions linked to above.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=426860
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=437040
3.
http://www.amazon.com/exec/obidos/tg/detail/-/0195169182/ref=pd_sim_b_2/102-2549931-9097758?%5Fencoding=UTF8&v=glance
4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=692224
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