Originalism and Judicial Review – Part I: The Mistaken Opinion of the Previous Generation

One of the questions asked of originalists is whether the original meaning ever clearly resolves an important constitutional issue. While I think that the uncertainty of the original meaning is overstated, it is true that many issues require further investigation. The ironic thing is that one area where the original meaning is quite clear is an issue where for a couple of generations people regularly asserted that the original meaning was the opposite of what it actually was: judicial review.

For a couple of generations before the last 10-15 years, people regularly claimed that the Constitution did not provide for judicial review and that Chief Justice John Marshall invented it in Marbury v. Madison. Yet, nothing could be further from the truth – judicial review is clearly established in the text and history of the Constitution.

This is an important issue. After all, if judicial review was made up by the Court, then this makes it more difficult to argue that the Court should follow the original meaning of the Constitution when conducting it.

The claim about the original meaning fit with the prejudices of the dominant view during this period. In addition to its implicit endorsement of nonoriginalist adjudication, this view about judicial review often drew a distinction between judicial review of federal laws and judicial review of state laws. This view sometimes acknowledged that judicial review of state laws was contemplated by the original meaning, but it still insisted that judicial review of federal laws was not. Thus, this claim fit with the New Deal view that judicial review of the federal government should be lax at best.

Today, however, I think that academic opinion on this matter has shifted. My sense is that people today who have studied the issue readily acknowledge that judicial review is established by the original meaning. But one still runs across people who are influenced by the older view – either because they are from a prior generation or because learned about the issue in the past. In a couple of posts, I will address this issue, first discussing the textual issues and then the historical arguments.