Geoffrey R. Stone's 'Fill in the Blank Constitution' NYT Op-Ed
rs at robertsheridan.com
Thu Apr 15 05:48:45 PDT 2010
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.
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.
> *Richard S.Kay
> Wallace Stevens Professor of Law
> University of Connecticut
> School of Law
> 65 Elizabeth St* *
> Hartford, CT 06105
> Tel (860) 570-5262
> Fax (860) 570-5242*
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
More information about the Conlawprof