Posted by Randy Barnett:
Tip to Students (and other readers):
A student wrote concerning my post on Sai Prakash and John Yoo's
article on judicial review:
I was a little surprised to see your recent post asserting that
judicial review was not "made up" in Marbury v. Madison.
As I understood it after taking ConLaw, the idea of judicial review
had been around before that case. For example, Federalist #78 was
written to say that it wasn't that bad (so someone must have
criticized it). I think most critics are saying that it was
inserted into the Constitution by Marbury v. Madison, or that its
inclusion in the Consitution was made up. The reason that there was
little dissent on both sides of the aisle at the time was that the
Federalists and Anti-Federalists both saw it as a great power that
they could exploit. However, that doesn't mean that the
Constitution provides for that power.
A similar comment showed up on a website [1]here.
I'm no scholar... just a 1L, but if you read closely, judicial
review does not necessarily equal judicial nullification. In fact,
even 78 does not explicitly make the jump that interpreting the
constitution and evaluating legislation is the same thing as
nullifying legislation. I say this not to argue against "judicial
review" - I'm a Hamiltonian - but to question whether the "even one
participant" assertion is valid.
Here is the tip: When it is suggested you read an article because it
presents comprehensive textual, structural, and historical analysis in
support of a particular conclusion abotu original meaning, do not
dispute the conclusion on the basis of a few teaser quotes in a blog
post. If you really care enough about the issue to write an email,
then take a look at the article.
WARNING: One of the burdens of being an originalist is that it
obligates you to reserve judgment until you read the evidence, rather
than merely speculate about what a particular passage might have
meant.
References
1. http://www.intheagora.com/archives/2005/04/judicial_review.html#005786
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