Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World?
John C. Eastman
Chapman University - School of Law; Claremont Institute Center for Constitutional Jurisprudence
Harvard Journal of Law and Public Policy, Vol. 28, pp. 714-740, Summer 2005
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, K49Accepted Paper Series
Date posted: August 21, 2006
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