[terry]

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.

I somewhat disagree with this. I think judicial review is there in the text of the Constitution. The Framers wrote that the "judicial power of the United States" is vested in the Supreme Court and the lower federal courts. So the question is, what did the Framers mean by "the judicial power"? I think there is compelling historical evidence that the widely understood public meaning of "judicial power" at that time included the power of judicial review. It was widely accepted at the time that it was the duty of the courts to apply the law, and when a conflict existed, to treat the fundamental law as superior to an inconsistent statute. That was seen as a proper role of courts, and thus was included in the "judicial power."

The Framers went on to give the federal courts the necessary mechanisms to exercise judicial review. They declared the Constitution to be the supreme law of the land, and they gave the federal courts jurisdiction over claims involving the Constitution. That allowed the federal courts to determine whether any federal or state statute was consistent with the Constitution.

Given they believed the "judicial power" includes judicial review, this was all the Framers needed to do in the text of the Constitution. Once we understand that the public meaning of "judicial power" at that time included judicial review, we can conclude that the text contains a sufficient basis for judicial review to satisfy the concerns of originalists or textualists.

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.

Yes indeed, some Anti-Federalists argued against giving such power to the federal courts. They opposed the ratification of the Constitution precisely because they believed that the Constitution does, in fact, provide for judicial review by the federal courts, and they thought this was a bad idea.

For example, in the Anti-Federalist papers, Robert Yates wrote: "[color=rgb(37, 37, 37)]The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void." Yates objected to this grant of power, but it's clear that he believed the Constitution does grant this power.[/color]

[color=rgb(37, 37, 37)]So, both the Federalists and the Anti-Federalists agreed that the federal courts would have the power of judicial review, though they disagreed about whether this was a good thing.[/color]

[terry]

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.

I somewhat disagree with this. I think judicial review is there in the text of the Constitution. The Framers wrote that the "judicial power of the United States" is vested in the Supreme Court and the lower federal courts. So the question is, what did the Framers mean by "the judicial power"? I think there is compelling historical evidence that the widely understood public meaning of "judicial power" at that time included the power of judicial review. It was widely accepted at the time that it was the duty of the courts to apply the law, and when a conflict existed, to treat the fundamental law as superior to an inconsistent statute. That was seen as a proper role of courts, and thus was included in the "judicial power."

The Framers went on to give the federal courts the necessary mechanisms to exercise judicial review. They declared the Constitution to be the supreme law of the land, and they gave the federal courts jurisdiction over claims involving the Constitution. That allowed the federal courts to determine whether any federal or state statute was consistent with the Constitution.

Given they believed the "judicial power" includes judicial review, this was all the Framers needed to do in the text of the Constitution. Once we understand that the public meaning of "judicial power" at that time included judicial review, we can conclude that the text contains a sufficient basis for judicial review to satisfy the concerns of originalists or textualists.

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.

Yes indeed, some Anti-Federalists argued against giving such power to the federal courts. They opposed the ratification of the Constitution precisely because they believed that the Constitution does, in fact, provide for judicial review by the federal courts, and they thought this was a bad idea.

For example, in the Anti-Federalist papers, Robert Yates wrote: "[color=rgb(37, 37, 37)]The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void." Yates objected to this grant of power, but it's clear that he believed the Constitution does grant this power.[/color]

[color=rgb(37, 37, 37)]So, both the Federalists and the Anti-Federalists agreed that the federal courts would have the power of judicial review, though they disagreed about whether this was a good thing.[/color]