Robert Alt’s pronouncement about the originalist view of judicial review is simply not accurate. In fact, it is a subject of much debate (and writing). Unfortunately, Robert quotes only part of Art III, Sec 2, which actually states, in the next to last paragraph:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all the other cases before mentioned [see Art III, Sec 2, Par 1], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
You simply cannot discuss the context of judicial review by ignoring an integral part of Article III. Robert says, “This more generalized statement of judicial power is not without limits–it is properly circumscribed by the understanding of judicial power at the time of the framing.” That may be so (whatever that means), but more importantly, it’s circumscribed by Article III itself.
Moreover, during the Constitutional Convention, there was discussion about the Supreme Court’s being part of a council of revision, based on a proposal by James Madison, in which it would participate in vetoing legislative acts before they would become law. But it was quickly abandoned, including by Madison himself, because they didn’t want the Court involved in legislative functions. Now, I understand the difference between law-making and judicial review, but the framer’s simply did not grant the judiciary the broad power to veto, i.e., strike down, congressional acts.
And the fact that the framers enumerated specific areas of judicial authority, and authorized Congress to determine both the structure and, in essence, the extent of its appellate authority, suggests not a broad grant of power to the judiciary, but a limited one.
I am not persuaded that the framers granted the judiciary the power Robert argues for. And yet, the judiciary can’t be a co-equal branch if it has almost no authority in determining constitutional questions. Furthermore, I believe a strong argument can be made that judicial review is an implied power. After all, if a court can’t adjudicate and interpret it has no effective authority. The reason judicial review is so hotly debated, even here among conservatives, is because the issue was not a primary focus at the Convention, and its boundaries have been determined by the judiciary itself. And not surprisingly, the judiciary has concluded that its power is supreme.
As an aside, I would urge the visitors to this site to read Federalist 78 in its entirety (it’s too long to provide here). And I think most will agree that Alexander Hamilton was wrong when he concluded that, in essence, judicial review (our phrase) would not mutate into judicial supremacy.