Originalism and Judicial Review – Part I: The Mistaken Opinion of the Previous Generation

One of the questions asked of originalists is whether the original meaning ever clearly resolves an important constitutional issue. While I think that the uncertainty of the original meaning is overstated, it is true that many issues require further investigation. The ironic thing is that one area where the original meaning is quite clear is an issue where for a couple of generations people regularly asserted that the original meaning was the opposite of what it actually was: judicial review.

For a couple of generations before the last 10-15 years, people regularly claimed that the Constitution did not provide for judicial review and that Chief Justice John Marshall invented it in Marbury v. Madison. Yet, nothing could be further from the truth – judicial review is clearly established in the text and history of the Constitution.

This is an important issue. After all, if judicial review was made up by the Court, then this makes it more difficult to argue that the Court should follow the original meaning of the Constitution when conducting it.

The claim about the original meaning fit with the prejudices of the dominant view during this period. In addition to its implicit endorsement of nonoriginalist adjudication, this view about judicial review often drew a distinction between judicial review of federal laws and judicial review of state laws. This view sometimes acknowledged that judicial review of state laws was contemplated by the original meaning, but it still insisted that judicial review of federal laws was not. Thus, this claim fit with the New Deal view that judicial review of the federal government should be lax at best.

Today, however, I think that academic opinion on this matter has shifted. My sense is that people today who have studied the issue readily acknowledge that judicial review is established by the original meaning. But one still runs across people who are influenced by the older view – either because they are from a prior generation or because learned about the issue in the past. In a couple of posts, I will address this issue, first discussing the textual issues and then the historical arguments.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Ron Johnson says

    From an originalist perspective, more interesting than question of judicial review, I think, is the effect of that review. I’m thinking about Lincoln’s argument to limit the effect of Dred Scott. Is such a decision the law of the case, or it the “supreme law of the land” as announced in Cooper v. Aaron?

  2. says

    Mick, I have read both your Part 1 and 2. I am posting this question — on both — to see if I can get “the answer”, from you, that I have continually disagreed with. I am not thoroughly convinced (even w/my greatest scholar Raoul Berger) of “judicial review”.
    Please explain in detail how the federal judiciary can review the First Amendment’s (the federal legislature “shall make no law” ) “nor prohibit the free expression thereof (religion)”, where the legislature — has made no law prohibiting thereof (religion)?
    If you wish to say that the federal judiciary says — they have “incorporated” the “prohibition of the free exercise thereof (religion). Tell me how — within a Constitutional enumeration — outside of the federal Legislative process, or the Amendment process? The Tenth Amendment certainly allows the State legislatures, and the people’s votes to uphold the “free exercise of religion”.
    Respectfully, John

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