23 Pages Posted: 21 Aug 2003
Date Written: 2003
In this paper, I refute any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. I will do so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting as comprehensively as I can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress.
In short, I shall demonstrate that the original meaning of the "judicial power" in Article III, included the power of judicial nullification. Many constitutional scholars who do not consider themselves to be originalists nevertheless acknowledge that originalism provides the starting point of constitutional interpretation or at least is a factor to be considered among others. It is equally important that these nonoriginalists are made aware of the substantial evidence that the original meaning of the "judicial power" included the power to nullify unconstitutional laws.
Suggested Citation: Suggested Citation
Barnett, Randy E., The Original Meaning of the Judicial Power (2003). Boston Univ. School of Law Working Paper No. 03-18. Available at SSRN: https://ssrn.com/abstract=437040 or http://dx.doi.org/10.2139/ssrn.437040