[81alum]

[quote author=81alum link=topic=14611.msg156745#msg156745 date=1455762610]
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."
[/quote]
I guess it depends on what sort of "strict constructionist" one means, and perhaps that is why friends of Scalia like Barnett and John Yoo prefer the term "originalist."  I think the argument that "the judicial power" is a textual basis for judicial review stretches the concept of a text a very long ways.  Consider what is really meant by this argument.  The phrase "the judicial power" only implies judicial review when interpreted in light of deep understandings of precedents, history, and culture that are not anywhere explicit in the Constitution itself.  One has to get inside the heads of the entire electorate that ratified the document to know what the document means, since its meaning is NOT explicit.  Again, that is fine with me as a justification for judicial review--but I think it rather takes the luster off of the "strict" aspects of strict constructionism.

In any case, this has been a fun debate!

[81alum]

[quote author=81alum link=topic=14611.msg156745#msg156745 date=1455762610]
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."
[/quote]
I guess it depends on what sort of "strict constructionist" one means, and perhaps that is why friends of Scalia like Barnett and John Yoo prefer the term "originalist."  I think the argument that "the judicial power" is a textual basis for judicial review stretches the concept of a text a very long ways.  Consider what is really meant by this argument.  The phrase "the judicial power" only implies judicial review when interpreted in light of deep understandings of precedents, history, and culture that are not anywhere explicit in the Constitution itself.  One has to get inside the heads of the entire electorate that ratified the document to know what the document means, since its meaning is NOT explicit.  Again, that is fine with me as a justification for judicial review--but I think it rather takes the luster off of the "strict" aspects of strict constructionism.

In any case, this has been a fun debate!