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Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World?John C. EastmanChapman University - School of Law; Claremont Institute Center for Constitutional Jurisprudence Harvard Journal of Law and Public Policy, Vol. 28, pp. 714-740, Summer 2005 Abstract: Prepared to commemmorate the bicentennial of the Supreme Court's landmark decision in Marbury v. Madison, this article explores the limits of the original holding, its expansive interpretation in the 20th Century to claims of judicial supremacy, even exclusiveness, in constitutional interpretation, and the various theories that would support such claims. The article explores in some detail the particularly troubling claim of judicial power to create new, unenumerated rights when the Court itself has rejected the foundational, natural rights principles that would lend legitimacy to the enterprise.
Number of Pages in PDF File: 28 Keywords: Supreme Court, Marbury v. Madison, Unenumerated Rights, Judicial Supremacy JEL Classification: H10, H11, H12, K40, K49 Accepted Paper SeriesDate posted: August 21, 2006Suggested CitationContact Information
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