When I started this site, I intended to do more blogging, but also link to published work. Since then, the published stuff has taken up more and more of my time. This summer, I’d like to try to add some shorter stuff here, like an old-fashioned blog, and to invite more community engagement in the comments. So watch this space for more of the kind of ideas I can’t get anybody to pay me for!
Hi, enjoyed your article at The Federalist about a Constitutional Amendment to settle the matter of Roe which led me to your website. I also think a helpful parallel tract to further the ensuing national debate would be a statute to codify the meaning of “judicial review” (JR). This historically accepted power SCOTUS declared for itself in Marbury v. Madison to clarify its Constitutional role, precedent dating all the way back to the Jefferson administration, formally has never been defined. Perhaps judicial activism could be mitigated with procedural guardrails that deviation from which could invite charges of “bad behavior” in office and the threat of impeachment. An Originalism definition of JR would help — (1) apply original meaning of text when law adopted, (2) weight of history and traditions, (3) respect for precedent … Perhaps a definition of JR could be part of any Roe Amendment? – JKR
Originalism would ALWAYS help! But the idea that Marshall invented judicial review is an exaggeration. It predates the constitution: see this article, for example, from Stanford Law Review.
http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/04/treanor.pdf