Geoffrey R. Stone's 'Fill in the Blank Constitution' NYT Op-Ed

[Robert Sheridan]

Perhaps, then, the direct credit goes to Marshall for Marbury.  However, 
he didn't invent the power of judicial review; he exercised it.  The 
power had been in the air, taken more or less for granted, implicit in 
the notion of a constitution, which if an act violated it's 
understanding would therefore be subject to being deemed 
unconstitutional and thus void, by a judge or a panel of judges.

The indirect credit should then go to the folks who set up the system in 
the first place, the people at the convention in Philadelphia in 1787.  
By failing to negate the possibility of such a power existing, they 
invited it to stand in background until someone exercised it, in the 
event Marshall in Marbury.  Justice Jackson's discussion of the notion 
of power in Youngstown seems relevant when he observes that it has a 
dynamic aspect the exercise of which depends on the competing players in 
the context of their controversy, loosely speaking.

The idea of a constitution based on the notion of creative ambiguity 
seems more and more apt as time goes by.

rs

Richard Kay wrote:
> You can make a case for a constitutional system in which  judges 
> overrule legislative decisions just by consulting their own ideas of 
> the best contemporary application of broad national values. But I wish 
> people would stop trying to pin this on James Madison. If Madison,  or 
>  any of the other significant creators of the 1787-89 constitution, 
> ever said this directly, I like to see the quotation.
>
> Rick
>
>
> *Richard S.Kay                                                
> Wallace Stevens Professor of Law                        
> University of Connecticut
> School of Law
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