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08/05/2019

Thomas Bettge: Evaluating Originalism in the Light of Judicial Review's Uncertain Origins
Michael Ramsey

Thomas Bettge (independent) has posted Marbury in the Vanishing Cabinet: Evaluating Originalism in the Light of Judicial Review's Uncertain Origins (Willamette Law Review, Vol. 55, No. 1, 2018) (45 pages) on SSRN.  Here is the abstract: 

Although originalism has occasioned substantial rethinking of many facets of our constitutional law, the doctrine of judicial review articulated in Marbury v. Madison has gone largely unquestioned. This article explores the uncertain place of judicial review in the original Constitution, and systematically lays out the consequences of that uncertainty for today's originalism.

The article unfolds the problems originalists face if judicial review was not part of the original constitutional framework. While many scholars in both the originalist and nonoriginalist camps believe that judicial review's place in the original Constitution is well established, this paper scrutinizes the leading scholarship on the history of judicial review and shows that, contrary to popular belief, judicial review's historical bona fides are fundamentally uncertain. Because judicial review cannot be justified on originalist grounds, originalists need to seek other reasons for engaging in it, and must reconcile those reasons with the basic tenets of originalism. To an extent, they have already done this, but significant gaps remain. The article considers what reasons originalists could invoke, and concludes that it will be difficult, absent historical legitimation for the practice of judicial review, for originalists to make an argument for judicial review that favors originalism over competing interpretive theories.

Regular readers know that I am highly unpersuaded by the originalist argument against judicial review so I will refrain from further comment.  But the article's "thought experiment" is interesting -- what if the Constitution's original meaning really does not grant the power of judicial review?  The obvious originalist response of course is: then there is no power of judicial review.  I wonder, is that the only possible originalist response?  I think it is, but it's a question worth asking.