[terry]

The point is that Judicial Review is inconsistent with a strict constructionist approach to the Constitution.   

Scholars who have researched this issue have argued quite persuasively that there is in fact a textual basis for judicial review in the language of the Constitution. They have argued that when the Constitution was written and ratified, the widely understood public meaning of "the judicial power" included judicial review, and the Constitution was invariably understood to give the federal courts the power of judicial review. So, an originalist who wants to apply the original public meaning of the text should read the grant of the "judicial power" in Article III to encompass judicial review.

Professor Randy Barnett of Georgetown, who is himself an originalist, put it this way:

"[T]he overwhelming majority of courts and scholars are correct, I submit, to accept the legitimacy of judicial review. Judicial nullification of unconstitutional laws is not only consistent with the frame provided by original meaning, it is expressly authorized by the text and it therefore entirely justified wholly on originalist grounds. . . . [T]he original meaning of the “judicial power” found in Article III was more specific than what today is its plain meaning and . . . at the founding, it included a power of judicial nullification. . . .

"Far more evidence exists to suggest that the original public meaning of the term “judicial power” included the power to nullify unconstitutional legislation than even many constitutional scholars who acknowledge its pedigree realize. . . .

"The evidence from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the “judicial power” included the power to nullify unconstitutional laws."

[terry]

The point is that Judicial Review is inconsistent with a strict constructionist approach to the Constitution.   

Scholars who have researched this issue have argued quite persuasively that there is in fact a textual basis for judicial review in the language of the Constitution. They have argued that when the Constitution was written and ratified, the widely understood public meaning of "the judicial power" included judicial review, and the Constitution was invariably understood to give the federal courts the power of judicial review. So, an originalist who wants to apply the original public meaning of the text should read the grant of the "judicial power" in Article III to encompass judicial review.

Professor Randy Barnett of Georgetown, who is himself an originalist, put it this way:

"[T]he overwhelming majority of courts and scholars are correct, I submit, to accept the legitimacy of judicial review. Judicial nullification of unconstitutional laws is not only consistent with the frame provided by original meaning, it is expressly authorized by the text and it therefore entirely justified wholly on originalist grounds. . . . [T]he original meaning of the “judicial power” found in Article III was more specific than what today is its plain meaning and . . . at the founding, it included a power of judicial nullification. . . .

"Far more evidence exists to suggest that the original public meaning of the term “judicial power” included the power to nullify unconstitutional legislation than even many constitutional scholars who acknowledge its pedigree realize. . . .

"The evidence from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the “judicial power” included the power to nullify unconstitutional laws."