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Original Understanding And The Whether, Why, And How Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For more than one hundred years, legal scholars have endlessly and heatedly debated whether judicial review of federal legislation was part of the original understanding of the Constitution. The stakes of the debate are high. If judicial review was part of the original understanding, then there is a strong argument that the practice is grounded in the majority’s will, just as the Founders’ Constitution is. But if it is not—if, as Alexander Bickel and others have claimed, judicial review was a sleight-of-hand creation of Chief Justice Marshall in Marbury v. Madison—then judicial review is either counter-majoritarian or else must …