In my Part 1 post, I’ve explained that I believe that Randy Barnett has failed to provide any originalist evidence in support of his claim that the power of judicial review is a power of formal judicial nullification of laws. In this post, I’ll briefly argue that, even apart from lack of supporting evidence, his claim is untenable and unattractive.
1. I’ll note, for starters, that in his response Barnett doesn’t engage at all with my points (a) that a narrow concept of judicial review—the power of courts to decline to apply laws they deem to be unconstitutional—is embodied in Chief Justice Marshall’s decision in Marbury v. Madison (see point 3 here); (b) that Barnett’s position would place him with Chief Justice Taney and Stephen Douglas in rejecting Lincoln’s refusal to read Dred Scott as invalidating the federal ban on slavery in the northern portion of the Louisiana Territories (point 4 here); and (c) that Barnett’s position is impossible to reconcile with the Legal Tender Cases (and thus with the Supreme Court’s own view of its power).*
2. Barnett argues that the “judicial power” set forth (with a capital P) in Article III of the Constitution includes the power to nullify laws—to wipe them out of existence so that there is nothing left of them for other governmental officials to enforce. But if his proposition were true, it would apply to every exercise of the judicial power—or, surely, at the least, to every final judgment rendered in any case. It would mean, for example, that an unappealed final judgment in district court or a final judgment rendered after federal appellate review has the formal legal effect of invalidating any laws that the court rendering the decision deems to be unconstitutional. That’s an astounding position that I’ve never heard anyone advance before.
A paragraph (“But I do believe …”) toward the end of Barnett’s response might be read to suggest that Barnett would apply his nullification theory only to Supreme Court rulings. But on what possible basis could he justify this limitation?
In his conclusion to his underlying article, Barnett asserts that the evidence of the original public meaning of the term “judicial Power” was so clear that it was unnecessary for the Framers to spell out explicitly that the “Supreme Court, and such inferior courts as may be established by Congress, shall have power to nullify a Law enacted by Congress and signed by the President if the Law is unconstitutional.” (Emphasis added.) In other words, he (mis)understood the originalist evidence to mean that lower federal courts indeed have the “power to nullify a Law”—with “nullify” having its strong formal legal meaning (see points 1 and 2 here). Any effort to retreat from that position now would just be concocting epicycles upon epicycles. (By contrast—and to continue the astronomical metaphor—everything falls into place when we put the Constitution rather than the judiciary at the center of the legal universe.)
* On this third point, a reader has called to my attention an Attorney General opinion from 1937. The Supreme Court’s decision in West Coast Hotel v. Parrish had just overruled the Court’s 1923 ruling in Adkins v. Children’s Hospital, and the question that the Attorney General was addressing was whether the District of Columbia minimum-wage law that had been deemed unconstitutional in Adkins could henceforth be enforced. The Attorney General’s advice (emphasis added):
The decisions are practically in accord in holding that the courts have no power to repeal or abolish a statute, and that notwithstanding a decision holding it unconstitutional a statute continues to remain on the statute books; and that if a statute be declared unconstitutional and the decision so declaring it be subsequently overruled the statute will then be held valid from the date it became effective. Pierce, et al. v. Pierce, 46 Ind., 86, 95; McCollum v. McConaughy (Sup. Ct. Iowa), 119 N. W. 539, 541; Christopher v. Mungen (Sup. Ct. Florida), 55 So. 273, 280; Allison v. Corker, 67 N. J. L. 596, 600; Boyd v. Alabama, 94 U.S. 645, 649; State v. O’Neil, 147 Iowa 513, 515, 520, 523; The Effect of an Unconstitutional Statute by Oliver P. Field, pp. 181, et seq. See also Thomas v. Gilbert, 76 Ohio St. 541; Jackson v. Harris, 43 Fed. (2d) 513, 516; Haskett et al. v. Maxey et al. 134 Ind. 182, 190; Center School Township v. State, 150 Ind. 168, 173; Ray v. Natural Gas Co., 138 Pa. St. 576, 590; Storrie v. Coats, 90 Tex. 283, 291; Hoven v. McCarthy Bros. Co., 163 Minn., 339, 341; Allen v. Allen, 95 Cal. 184, 199; Crigler v. Shepler, 79 Kan. 834, 840; Adkins v. Children’s Hospital, supra 544. 7 R. C. L., p. 1010.
It is, therefore, my opinion that the District of Columbia minimum wage law is now a valid act of the Congress and may be administered in accordance with its terms.
I don’t think that the Attorney General’s opinion is a masterpiece of legal reasoning—I would have looked to first principles of American constitutional law rather than to state decisions—but its conclusion strikes me as clearly correct. Under Barnett’s theory, by contrast, the D.C. law would have been wiped out of existence fourteen years earlier, so there would have been nothing to spring back into enforceability.