Well, if you ask me, there is no Constitutional basis for it at all. It is a matter of judicial approach to the issue of judicial review. In short, once you have a power, to what extent should you exercise it? The Constitution is silent upon this; I don’t think that the “strict constructionalists” or the “anti-judicial activists” are arguing a Constitutionally based position. Rather, the position is one of which is better: avoiding mistakes that do too much or avoiding mistakes that do too little. You’ll notice that Bricker has had to be very carefully thoughtful in advocating the rationale for his position, because once you strip it down to this, it gets tougher to be assured of correctness.
Well, I don’t have the extensive references many of you have, but my Oxford Companion to the Supreme Court’s discussion of “Judicial Review” notes the following American invocations of it pre-Marbury:
[ul][li]James Otis, the Writs of Assistance Case (Massachusetts)[/li][li] John Adams, in an unspecified writing referencing the above and adopting its reasoning [/li][li] Alexander Hamilton, in Federalist #78 (although the excerpted quote in the Oxford Companion does not appear to deal with judicial review)[/li][li] James Iredell, at the Constitutional Convention, and as Assoc. Just. in his seriatim opinion in Calder v. Bull[/ul][/li]
So while that’s not open-and-shut proof, I’d say that there’s plenty of evidence to suggest that judicial review was an accepted concept prior to 1803, and that Marshall did not pull it out of his archijusticial rectum.
I don’t think anyone’s saying he did. But he certainly jiggered around with the legal reasoning and precedent to get it to fit the result he wanted.
If you start with the proposition, that to my mind is pretty well resolved, that judicial review is a proper exercise of the judicial power, it seems to me that the exercise of that power to deal with unenumerated rights is, likewise, a proper exercise of the judicial power, cries of “judicial activism” notwithstanding.
Well, just looking at the history of our country, where do you come down on this issue? To me, it seems pretty cut and dried, but I’d be interested in other positions.
Egad. If I gave you my views, how could I argue both sides of the same question? :eek:
This way, you can double bill both Scalia and Souter. Or Bork and Posner.
A textualist, an originalist, an L&E guy, and whatever the hell Souter is. Not a very representative sampling. 