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02/18/2012

Originalism on the Web
Michael Ramsey

Noah Feldman: Ginsburg's right, U.S. Constitution is a bad model (commenting on the study by David Law and Mila Versteeg noted here, and making a somewhat strained argument against originalism).

As an aside, as a follow-up to my recent post on Marbury, I note that Professor Feldman says that the practice of judicial review "is an innovation introduced in 1803 by the Supreme Court under Chief Justice John Marshall in the now famous case of Marbury v. Madison."  I'm sure Professor Feldman is aware of the widespread assumptions regarding judicial review before Marbury, but loose language like this contributes to the idea that judicial review lacks originalist foundations.  The short of it is that Marbury may have been the first case to explain and justify judicial review, but the idea is well reflected in founding era writings (including those of Madison and Jefferson I noted previously, as well as of course Hamilton's Federalist 78).

RELATED, on the Marbury point: via the Legal History Blog, Keith Whittington (Princeton Political Science) and Amanda Rinderle have posted Making a Mountain Out of a Molehill? Marbury and the Construction of the Constitutional Canon (forthcoming, Hastings Constitutional Law Quarterly) on SSRN.  Here is the abstract:

How important was Marbury v. Madison in American constitutional history? This article examines judicial, legislative and executive citations and legal commentary to show that Marbury did not enter the constitutional canon as the fountainhead of judicial review until the turn of the twentieth century. In doing so, it reveals the process by which historical memories are constructed and adds to our understanding about the diverse sources of judicial review in the early republic and the rhetoric of judicial authority.

My speculation would be that Marbury wasn't initially regarded as all that significant because it wasn't thought to break new ground on this point, consistent with my view that some form of judicial review was generally understood to be implicit in Article III and Article VI.