The Original Meaning of the Judicial Power

In this paper, Professor Barnett refutes the claims that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. He does so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. Taken cumulatively, these statements leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress. In short, the evidence presented here demonstrates that, at the time of its enactment, the original public meaning of the "judicial power" in Article III, included the power of judicial nullification. This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declaie it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the general government, the law is void; and upright, independent judges will declare it to be so.-Oliver Elsworth (1788) The evidence seems to indicate that the Framers did not mean for the Supreme Court to have authority to void acts of Congress.-Leonard Levy (1988)