Dispatches from the Creation Wars

Via Randy Barnett at VC, there is a new paper at SSRN from John Yoo and Sai Prakash, entitled The Origins of Judicial Review. This was the subject of much discussion recently in posts by me and by Josh Claybourn. It began with me criticizing Tom Delay for his absurd statement that, “The reason we had judicial review is because Congress didn’t stop them,” a statement which clearly indicates that Delay is opposed to judicial review itself, not merely to decisions he disagrees with. In doing so, he is offering up a blatantly anti-Constitutional argument. As I pointed out in response, he is flat wrong – the reason we have judicial review is because Article III of the Constitution was intended precisely for the purpose of establishing judicial review. Barnett himself agrees, saying,

Given the state of the historical record, it now amazes me that anyone can still argue that judicial review was made up by John Marshall in Marbury v. Madison.

You can find a longer exposition of Barnett’s position on this in his SSRN paper, The Original Meaning of the Judicial Power. Yoo and Prakash go deeper than Barnett in examining the historical record regarding judicial review and they make much the same argument that I made in the previous threads, that not one of the founding fathers, including those who opposed judicial review, argued that Article III did not require it:

[N]o scholar has been able to cite any Federalist or Anti-Federalist who declared that the Constitution did not permit judicial review of federal legislation…

[N]o scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of federal statutes. This silence in the fact of the numerous comments on the other side is revealing.

It certainly is. Combine that with Hamilton’s clear statements in Federalist 78 and there is simply no doubt that Article III included the power of judicial review. The fact that people like Tom Delay use the rhetoric of “originalism” incessantly while attempting to excise judicial review, which Hamilton considered so important that without it all of the declarations of the rights of citizens found in our founding document “would amount to nothing”, only shows the utter intellectual bankruptcy of their position and their total lack of understanding of constitutional doctrine.


  1. #1 Matthew
    April 19, 2005

    I’ll try and read these papers. My contention was not that some founders did not think the courts had the right to judicial review, but that some thought that the courts didn’t have the exclusive right to judicial review. Being that Hamilton was a bitter enemy of Madison’s, I don’t see why his opinions on judicial review should be interpreted as being representative of what Madison thought. What Madison thought is what’s important, in this issue, after all. We know of at least 1 instance in which Madison didn’t obey a supposed exclusive right to judicial review by the courts; when he wrote the Virginia resolution. So whether Madison felt strongly in favor of judicial review when he wrote Article III, I think, is suspect. But I’ll read these, and they might just change my mind.

  2. #2 raj
    April 20, 2005

    Combine that with Hamilton’s clear statements in Federalist 78 and there is simply no doubt that Article III included the power of judicial review.

    Precisely. And FP78 wasn’t the only FP that sourced judicial review.

    Let’s get something straight. The US Constitution was not written in a vacuum. And the US legal system didn’t just jump out of thin air. The immediate source was a British tradition–British common law–which, in turn, was largely based on Roman law.

    That’s why I find it amazing when someone objects when an American court makes reference to laws of other western countries, or court decisions of other western countries. On the one hand, they typically refer to the US as being part of the “West”–meaning the western European tradition. When it suits their purpose. On the other hand, they object to it when it doesn’t.

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