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 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 about 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.
Comments are closed.