Greedy Blog

Tuesday, April 19, 2005

Not Exactly
I disagree with this post by Randy Barnett about judicial review.

He claims that there is no historical argument that judicial review was "made up" in Marbury v. Madison. While I think the general theory of judicial review was not "made up" in that case, that case "made up" the fact that such an ability was set out by the Constitution.
The theory of judicial review existed before the Constitution was passed. For example, some state Supreme Courts had that ability. Federalist #78 was written to defend it (so there were also critics). But when it came time to specify the powers of the judiciary, judicial review wasn't included. See U.S. Const., Art. III.
The problem was that both political parties at the time thought they could exploit that power to overturn legislation they didn't like. Thus, it became an accepted practice, even though its inclusion in the Constitution was "made up."

UPDATE: I emailed Professor Barnett with the general text of my post and he told me to read this. I'm too lazy to search through 90 pages, so I leave the reader to make their own determination. Without having read it, I think my original post offered at least a plausible explanation as to why none of the Founders seemed to dislike judicial review.

Posted by Gel 3:02 PM Post a Comment

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