From Randy Barnett: The Original Meaning of the Judicial Power

In a 2004 article, Barnett tackles the claims that the framers of the Constitution did not define judicial power to include the power of judicial review. It became common to think that the power originated with John Marshall's decision in Marbury v. Madison. Looking through the history of the time, Barnett argues that an originalist approach to the use of the terms suggests that the intent was for the judiciary to have that power.

Dual credit students might find this to be a helpful look at this approach to constitutional interpretation, and how lawyers and scholars still wrestle with the meaning of the Constitution.

- Click here for the article.

In this article, I intend to lay to rest any doubt that, at the founding, the judicial power of the United States included the power of judicial rzeview. I hope to refute any 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. I will do so, not by discerning the shadowy and often counterfactual “intentions” of the founding generation, but by presenting as comprehensively as I can what the founders actually said during the constitutional convention and in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress. In short, I shall demonstrate once and for all that the original meaning of the “judicial power” in Article I, includes the power of judicial nullification.at least is.