[terry]

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!

The idea that we need to "get inside the heads" of the 18th century Framers to understand what they meant in the Constitution is part and parcel of Scalia's originalism. Scalia used to look at history, precedents, and culture to determine the 18th century meaning of the words used in the Constitution. Take a look at Scalia's opinion in the 2nd Amendment case, District of Columbia v. Heller. That opinion is loaded with references to 18th century dictionaries, statutes, treatises, news articles, letters, essays, and so forth. Scalia uses those sources to determine the 18th century understanding of the right to keep and bear arms.

Prof. Barnett's originalist analysis of judicial review follows the same approach. He looks at 18th century sources to determine what the words in the Constitution meant back in the 18th century. His research shows that the 18th century understanding of the term "judicial power" included judicial review. Other scholars have done related work. I think this analysis of historical and cultural sources is well within the originalism espoused by Scalia.

Yes, it has been a fun discussion.

[terry]

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!

The idea that we need to "get inside the heads" of the 18th century Framers to understand what they meant in the Constitution is part and parcel of Scalia's originalism. Scalia used to look at history, precedents, and culture to determine the 18th century meaning of the words used in the Constitution. Take a look at Scalia's opinion in the 2nd Amendment case, District of Columbia v. Heller. That opinion is loaded with references to 18th century dictionaries, statutes, treatises, news articles, letters, essays, and so forth. Scalia uses those sources to determine the 18th century understanding of the right to keep and bear arms.

Prof. Barnett's originalist analysis of judicial review follows the same approach. He looks at 18th century sources to determine what the words in the Constitution meant back in the 18th century. His research shows that the 18th century understanding of the term "judicial power" included judicial review. Other scholars have done related work. I think this analysis of historical and cultural sources is well within the originalism espoused by Scalia.

Yes, it has been a fun discussion.