Mike Ramsey recently linked to Noah Feldman’s short essay about the declining influence of the United States Constitution on the rest of the world. Mike noted that Feldman claimed that judicial review was somehow invented by John Marshall in Marbury v. Madison. While Mike criticizes Feldman, I would go further and say that scholars today generally recognize that judicial review was a relatively common practice prior to the Constitution, that the framers expected it to be employed, and that the constitutional text contemplates it. To mention just one article, Bill Treanor (no conservative and not an originalist, at least of the standard variety) notes that prior to the Constitution, there were at least “thirty-one cases in which a statute was invalidated and seven more in which, although the statute was upheld, one judge concluded that the statute was unconstitutional.” He concludes that Marbury built on a firm foundation of judicial review.
Another part of Feldman’s essay is even more worthy of note. Feldman writes:
The truth is that no sane constitution-drafters would want the future court of their country to spend its time arguing about what they really meant — or even about public perception of what they meant. Debates about what the Constitution originally meant become proxies for arguments about what the Constitution ought to mean.
Perhaps Feldman is aware that James Madison, father of the Constitution, wrote that:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable . . . exercise of its powers.