02-17-2016, 06:08 PM
Terry, I totally agree with you, and I think you have excellently set forth the case that a large number of the people responsible for creating the constitution agreed with, and assumed the courts would have, the power of Judicial Review. However, a strict reading of the Constitution, one limited to the text itself (as Scalia and current legal fundamentalism claims to adhere to) finds it nowhere in the actual document. And I'm fairly certain I could find some Anti-Federalists at the time who would state their anxiety about giving too much power to the courts.
To be clear, I'm not in favor of getting rid of judicial review. Just pointing out that even the most strictly conservative "textualists" at some point must be making judgments about which voices to listen to, which interpretations to endorse and accept...much like fundamentalist religious thinkers who end up deciding which particular portion of exceptionally complex and sometimes contradictory texts they want to focus on.
To be clear, I'm not in favor of getting rid of judicial review. Just pointing out that even the most strictly conservative "textualists" at some point must be making judgments about which voices to listen to, which interpretations to endorse and accept...much like fundamentalist religious thinkers who end up deciding which particular portion of exceptionally complex and sometimes contradictory texts they want to focus on.