[terry]

The Classic example is Judicial Review itself, which is NOWHERE to be found in the Constitution, but was itself created by an act of judicial activism by the Marshall court. 

I realize it long has been argued that judicial review was "created by an act of judicial activism" in Marbury v. Madison. I do not agree.

Rather, I believe that the Framers intended the federal courts to have the power of judicial review. The historical record provides abundant, overwhelming evidence that the people who drafted, approved, and ratified the Constitution believed the power of judicial review was a proper function of the courts and intended that the Article III judicial power would include the power of judicial review.

In the interest of brevity, I will limit the following to some bullet points and a few examples, but there is much more evidence along the same lines.

- The concept of judicial review was familiar to the Framers because the state courts had exercised judicial review in a number of cases during the Articles of Confederation period. The delegates to the Constitutional Convention knew about these cases and commented on them in the debates. For example, Elbridge Gerry said: "in some states, the judges had actually set aside laws, as being against the constitution."

- A number of delegates stated at the Constitutional Convention that the federal courts would have the power of judicial review. For example, James Madison said: "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." George Mason said that federal judges "could declare an unconstitutional law void."

- Likewise, a number of delegates to state ratification conventions stated that the federal courts would have the power of judicial review. Both advocates and opponents of the Constitution argued that it allowed judicial review, though they disagreed about whether this was a good idea. For example, Oliver Ellsworth said: "If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges . . . will declare it to be void."

- The Federalist Papers described the federal courts' power of judicial review. For example: "The interpretation of the laws is the proper and peculiar province of the courts. . . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former." (Federalist No. 78)

- The Judiciary Act of 1789, enacted by the first Congress, gave the Supreme Court appellate jurisdiction over claims that federal or state statutes were unconstitutional, thus providing a mechanism for judicial review.

- In the period between the adoption of the Constitution and the Marbury case in 1803, there were dozens of cases in which the lower federal courts and state courts exercised the power of judicial review. Judicial review was known, accepted, and applied well before Marbury.

I think the idea that the Supreme Court invented judicial review out of whole cloth in Marbury is just plain wrong. That idea is thoroughly contradicted by the historical record. The history leaves little doubt that the founders considered judicial review to be a proper function of the courts and intended the Article III courts to have the power of judicial review.

[terry]

The Classic example is Judicial Review itself, which is NOWHERE to be found in the Constitution, but was itself created by an act of judicial activism by the Marshall court. 

I realize it long has been argued that judicial review was "created by an act of judicial activism" in Marbury v. Madison. I do not agree.

Rather, I believe that the Framers intended the federal courts to have the power of judicial review. The historical record provides abundant, overwhelming evidence that the people who drafted, approved, and ratified the Constitution believed the power of judicial review was a proper function of the courts and intended that the Article III judicial power would include the power of judicial review.

In the interest of brevity, I will limit the following to some bullet points and a few examples, but there is much more evidence along the same lines.

- The concept of judicial review was familiar to the Framers because the state courts had exercised judicial review in a number of cases during the Articles of Confederation period. The delegates to the Constitutional Convention knew about these cases and commented on them in the debates. For example, Elbridge Gerry said: "in some states, the judges had actually set aside laws, as being against the constitution."

- A number of delegates stated at the Constitutional Convention that the federal courts would have the power of judicial review. For example, James Madison said: "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." George Mason said that federal judges "could declare an unconstitutional law void."

- Likewise, a number of delegates to state ratification conventions stated that the federal courts would have the power of judicial review. Both advocates and opponents of the Constitution argued that it allowed judicial review, though they disagreed about whether this was a good idea. For example, Oliver Ellsworth said: "If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges . . . will declare it to be void."

- The Federalist Papers described the federal courts' power of judicial review. For example: "The interpretation of the laws is the proper and peculiar province of the courts. . . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former." (Federalist No. 78)

- The Judiciary Act of 1789, enacted by the first Congress, gave the Supreme Court appellate jurisdiction over claims that federal or state statutes were unconstitutional, thus providing a mechanism for judicial review.

- In the period between the adoption of the Constitution and the Marbury case in 1803, there were dozens of cases in which the lower federal courts and state courts exercised the power of judicial review. Judicial review was known, accepted, and applied well before Marbury.

I think the idea that the Supreme Court invented judicial review out of whole cloth in Marbury is just plain wrong. That idea is thoroughly contradicted by the historical record. The history leaves little doubt that the founders considered judicial review to be a proper function of the courts and intended the Article III courts to have the power of judicial review.