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 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" 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 right" or "militia-conditioned-individual right" 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, 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 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.

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 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.