Ratification Convention – Judicial Review

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    I always thought that judicial review was something created by John Marshall in Marbury v. Madison and is not a specified power granted to the Supreme Court, but in this lecture you seem to explain that judicial review, though not specified, is a legitimately implied power as drafted by the framers based on Article 3 and 6. Does this mean Marshall was correct to interpret the constitution this way? Did the Framers intend to place the power as the final arbiter of constitutional issues in the hands of the judicial branch?


    Good question. There were those who assumed the judicial branch would have some type of role in this process, Marshall among them, and others who did not think the SCOTUS should have this power, John Dickinson being the most prominent. The founding generation were in agreement that the SCOTUS did not have the power to invalidate State law, as John Rutledge of SC said that alone would damn the Constitution. Marshall swore in the VA Ratifying Convention that the SCOTUS would never do that. He lied.


    Judicial review is one thing, “final arbiter” is another. Nowadays, under the rubric of the Supreme Court as “final arbiter” (since Cooper v. Aaron (1958), at least), once the SCUS says something, people passively accept it. We could have judicial review as part of ongoing conversation concerning constitutional meaning, as Jefferson, Jackson, and even Lincoln advocated, but instead we have the current awful system.

    I agree completely with what Dr. McClanahan says about review of state laws. FLETCHER V. PECK (1810) was a terrible decision, in every sense.

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