Re: Against Euphemistic Defenses of Judicial Supremacy

by Ed Whelan

One further point against Randy Barnett’s defense of judicial supremacy:

As I understand Barnett’s theory of judicial nullification, when the Court rules that a law is unconstitutional in some of its applications, its ruling operates to revise the law to excise those offending applications. But that theory of nullification seems impossible to reconcile with the Legal Tender Cases.

In 1870, in Hepburn v. Griswold, the Court ruled that the Legal Tender Act of 1862 could not constitutionally be applied to contracts made before its enactment. Under Barnett’s theory, the Act was rewritten to excise those retroactive applications. Yet one year later, the Court in Knox v. Lee reversed course and held that the Act could be applied to contracts made before its enactment. But if the offending applications of the Act had already been written out of existence, how could the Court have ruled on an Act that, in relevant part, no longer existed?

(I thank Matt Franck for calling this point to my attention.)