The Original Meaning of the Judicial Power

Abstract

In this paper, Professor Barnett refutes the claims that 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 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 in Article III, included the power of nullification. This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap the...