In Montana, Corporations Aren’t People

Originally posted by Kunsoo
I'm not sure what you mean by nullification, but threatening a split of the union every time there's a Constitutional question just doesn't seem very practical.

Mind you, I also think Marbury v. Madison created the power out of a precedent vacuum, but clearly it was a huge hole left in the process by the drafters. Whether they had the power to assert, their solution makes sense for an orderly quasi-democratic Republic.

Hamilton specifically discussed judicial review in Federalist 78. The idea had been kicking around for a while and was not something dreamed up by Chief Justice Marshall has our most renowned non-historian asserts.

EDIT: There's a decent summary here: http://supreme.justia.com/constitution/article-3/21-judicial-review.html

Originally posted by Kunsoo
I'm not sure what you mean by nullification, but threatening a split of the union every time there's a Constitutional question just doesn't seem very practical.

Mind you, I also think Marbury v. Madison created the power out of a precedent vacuum, but clearly it was a huge hole left in the process by the drafters. Whether they had the power to assert, their solution makes sense for an orderly quasi-democratic Republic.

No1 beat me to it but judicial review was most decidedly not a new concept in Marbury. There's a reason it met so little resistance.

Originally posted by sh76
No1 beat me to it but judicial review was most decidedly not a new concept in Marbury. There's a reason it met so little resistance.

Perhaps, but it could have been explicitly spelled out in the Constitution if there was the political will. Either they didn't put much thought into it (doubtful), or they decided to leave it vague and let the winds of law and politics solidify it, perhaps because they anticipated some difficulty of consensus at the convention.

Hamilton also envisioned a federal government more active than Madison.

Originally posted by Kunsoo
Perhaps, but it could have been explicitly spelled out in the Constitution if there was the political will. Either they didn't put much thought into it (doubtful), or they decided to leave it vague and let the winds of law and politics solidify it, perhaps because they anticipated some difficulty of consensus at the convention.

Hamilton also envisioned a federal government more active than Madison.

If you've ever actually read the debates in the convention, you'll know that the discussions of many issues were perfunctory. Many things aren't explicitly spelled out in the Constitution but were presumed to be within the powers of the branches of government. The cite I provided to you shows multiple mentions of judicial review at the Convention and little opposition to it. Your guesswork and speculation is at odds with the historical record; judicial review was discussed at the Convention, at the State ratifying conventions and in the Federalist and was overwhelmingly accepted.

Hamilton's vision of the federal government prevailed over Madison/Jefferson's and was the majority view of the Framers as evidenced by passage of the 1st Bank of the United States and acceptance by Congress of virtually all of Hamilton's economic proposals.

Originally posted by no1marauder
If you've ever actually read the debates in the convention, you'll know that the discussions of many issues were perfunctory. Many things aren't explicitly spelled out in the Constitution but were presumed to be within the powers of the branches of government. The cite I provided to you shows multiple mentions of judicial review at the Convention and lit ...[text shortened]... nited States and acceptance by Congress of virtually all of Hamilton's economic proposals.

I've only read portions here and there, and it was clear to me that many things aren't explicitly spelled out because they knew it would be hard to get consensus and therefor jockeyed for the wording that might give their positions some leverage at a later date, knowing they had to get something signed. I don't know if judicial review is one of those issues, but it's certainly the case of Article Two and a good portion of the Bill of Rights.

Originally posted by Kunsoo
I've only read portions here and there, and it was clear to me that many things aren't explicitly spelled out because they knew it would be hard to get consensus and therefor jockeyed for the wording that might give their positions some leverage at a later date, knowing they had to get something signed. I don't know if judicial review is one of those issues, but it's certainly the case of Article Two and a good portion of the Bill of Rights.

I can find no evidence that the Framers discussed any subject in the Convention and then decided to not explicitly spell out something because they knew it would be hard to get a consensus. If you have any evidence of that, I'd be interested in seeing it.

Originally posted by Kunsoo
I'm not sure what you mean by nullification, but threatening a split of the union every time there's a Constitutional question just doesn't seem very practical.

Mind you, I also think Marbury v. Madison created the power out of a precedent vacuum, but clearly it was a huge hole left in the process by the drafters. Whether they had the power to assert, their solution makes sense for an orderly quasi-democratic Republic.

Nullification was simply the act of ignoring a law considered unconstitutional. It didn't mean secession every time, of course.

The principal was articulated as I recall by Franklin who said paraphrasing, 'an unjust law is no law at all'.

The Constitution was silent on the matter, which may seem to us today to be an oversight, on the other hand over time the executive has usurped power never given them over time as well. And consistently, Congress routinely passes laws with little or no Constitutional backing.

Originally posted by no1marauder
I can find no evidence that the Framers discussed any subject in the Convention and then decided to not explicitly spell out something because they knew it would be hard to get a consensus. If you have any evidence of that, I'd be interested in seeing it.

Well, it's not something they would say publicly, because that would be lame. But it's consistent with wordings which were proposed and argued, and then the varied interpretations in the political fights afterward, including the fight over whether to institute a national bank. Where I've read about it was in works by Eric Foner, Ray Raphael, and Howard Zinn, but also in debates over the Second Amendment, the degree to which common law remains in force post-Constitution, and the debate between strict constructionism and the living document doctrine.

Originally posted by Kunsoo
Well, it's not something they would say publicly, because that would be lame. But it's consistent with wordings which were proposed and argued, and then the varied interpretations in the political fights afterward, including the fight over whether to institute a national bank. Where I've read about it was in works by Eric Foner, Ray Raphael, and Howard Zin ...[text shortened]... Constitution, and the debate between strict constructionism and the living document doctrine.

The Notes of the debates in the Constitutional Convention are available; for many years I had Max Farrand's set of them on my night stand. It is fair to say that not every member of the Constitutional Convention interpreted all its provisions in the same manner. It is fair to say that they anticipated arguments of this sort.