[81alum]

[quote author=81alum link=topic=14611.msg156690#msg156690 date=1455683753]
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.
[/quote]

Yes, and I know Jack Rakove (Professor of History at Stanford) has made this argument.  I certainly do not believe that judicial review was invented out of whole cloth.  There were many precedents at the state level before Marbury.  And yes, some delegates argued that it should be assumed.  People make all kinds of arguments--but until it is written and people vote on the language, it is not part of the Constitution, according to the Scalias of the world.  The point I am making is not whether Judicial Review should have been incorporated into our government on the basis of past precedent.  The point is that Judicial Review is inconsistent with a strict constructionist approach to the Constitution.  To a strict constructionist it should not matter that there were precedents for j.r., nor would it matter that a few delegates voiced their opinion that it was implied somewhere within that exceptionally sketchy Article III.  All that would matter is whether the Constitution literally included it and whether the people ratified it.

In an interesting way I think Hamilton supports me on this.  I like Hamilton's argument in 78--it is an elegant theory.  For Hamilton, judicial review is necessary because the status of the Constitution is different from other laws.  It is a fundamental law not because it was first or occupies a particular piece of parchment--it is a fundamental law because only the Constitution was ratified directly by the people (except it wasn't--but that is another argument.)  Well, the people never did ratify judicial review in any way that was obvious to them.  Many were angry--Jefferson most especially--by what they regarded as an unconstitutional power grab by the SC.

By the way, I like judicial review.  I think Hamilton's argument is sound.  I wish he had stuck around at the convention for long enough to persuade the delegates to enshrine that principle in writing.  But he didn't, and they didn't, and so the most important power of the judicial branch of our government depends upon interpreting history and not upon a piece of text. 

I'm fine with that.  But any strict constructionist who strikes down a law as unconstitutional is, in my view, practicing hypocrisy.   

[81alum]

[quote author=81alum link=topic=14611.msg156690#msg156690 date=1455683753]
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.
[/quote]

Yes, and I know Jack Rakove (Professor of History at Stanford) has made this argument.  I certainly do not believe that judicial review was invented out of whole cloth.  There were many precedents at the state level before Marbury.  And yes, some delegates argued that it should be assumed.  People make all kinds of arguments--but until it is written and people vote on the language, it is not part of the Constitution, according to the Scalias of the world.  The point I am making is not whether Judicial Review should have been incorporated into our government on the basis of past precedent.  The point is that Judicial Review is inconsistent with a strict constructionist approach to the Constitution.  To a strict constructionist it should not matter that there were precedents for j.r., nor would it matter that a few delegates voiced their opinion that it was implied somewhere within that exceptionally sketchy Article III.  All that would matter is whether the Constitution literally included it and whether the people ratified it.

In an interesting way I think Hamilton supports me on this.  I like Hamilton's argument in 78--it is an elegant theory.  For Hamilton, judicial review is necessary because the status of the Constitution is different from other laws.  It is a fundamental law not because it was first or occupies a particular piece of parchment--it is a fundamental law because only the Constitution was ratified directly by the people (except it wasn't--but that is another argument.)  Well, the people never did ratify judicial review in any way that was obvious to them.  Many were angry--Jefferson most especially--by what they regarded as an unconstitutional power grab by the SC.

By the way, I like judicial review.  I think Hamilton's argument is sound.  I wish he had stuck around at the convention for long enough to persuade the delegates to enshrine that principle in writing.  But he didn't, and they didn't, and so the most important power of the judicial branch of our government depends upon interpreting history and not upon a piece of text. 

I'm fine with that.  But any strict constructionist who strikes down a law as unconstitutional is, in my view, practicing hypocrisy.