Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
Recently, Lino Graglia published a review of Akhil Amar’s new book that made some claims about the basis for judicial review in the Constitution. Lino wrote:
Constitutional law is the product of judicial review, the power of judges to invalidate policy choices made by other officials of government on the ground that they are prohibited by the Constitution. Although the power obviously creates the danger of making the judiciary — more specifically, the Supreme Court — superior to the legislature and the ultimate lawgiver, it is not explicably provided for in the Constitution. [MR note: does Graglia mean explicitly or explicably?] It was established and defended by Chief Justice John Marshall in the famous case of Marbury v. Madison, however, on the ground that it is inherent in a written constitution. This was not correct in that other nations had and have written constitutions without judicial review. Limiting judicial review to enforcement of a written Constitution does, however, serve the purpose of making it a tool of constitutionalism rather than simply a transference of policymaking power to judges.
Lino’s claim is not entirely clear, but it can be interpreted as asserting that judicial review is not really in the Constitution. While Lino may or may not mean this, this claim about the lack of basis for judicial review used to be very common. It obviously supports nonoriginalism. If the power of judicial review is just made up, then one might argue that there can be little objection to judges exercising that power by making things up as well.
But judicial review is not just made up. In recent years, scholars have argued persuasively that the Framers expected judicial review of the Constitution. But, even more importantly, judicial review has a strong basis in the constitutional text. While I cannot go review all of the arguments, I will try to hit the high points.
First, the Supremacy Clause expressly states that a form of judicial review exists:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Clearly, this is stating that state court judges must apply the Constitution rather than state statutes. Thus, Graglia’s apparent claim that judicial review is not expressly in the Constitution is mistaken as to judicial review of state laws, and Graglia’s essay clearly indicates that he has such judicial review of state laws in mind.
But the constitutional text also supports judicial review of federal statutes. This occurs in a number of different ways. First, at the time of the Constitution, constitutions were thought to take priority over statutes. Second, judges would also have a role in determining that a statute conflicted with the constitution (as opposed to the alternative possibility that the Congress would have the exclusive power to make that determination). In the case of state statutes, the Constitution itself recognized that state courts would make the determination that the state statute conflicted with the Constitution (rather than state legislatures making the determination). So the same rule would make sense as to federal statutes. In addition, the Constitution proclaims itself law, which also suggests that judges should interpret it as they interpret other laws. Further, the Constitution provides that “This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land.” That suggests that only federal statutes consistent with the Constitution are supreme law of the land. This last provision is open to other interpretations, but significantly many people at the time of the framing interpreted it in that way. See footnote 76 of this paper.