At Volokh Cospiracy, Ilya Somin: Abortion, Marbury v. Madison, and What's "Written in the Constitution". From the introduction:
Conservative critics of Roe v. Wade have long argued that it is wrong in part because the right to abortion is nowhere written in the Constitution. Thus, it's no surprise that the issue came up in today's oral argument in Dobbs v. Jackson Women's Health Organization, the case that could lead to the overruling of Roe. Supreme Court Justice Sonia Sotomayor offered the following response, while questioning Mississippi Solicitor General Scott Stewart:
Justice Sonia Sotomayor turned to Mississippi's arguments that Roe v. Wade should be overturned because abortion rights are not explicitly laid out in the text of the Constitution.
Sotomayor noted that several key decisions – such as Marbury v. Madison, which established the judicial review – are not in the Constitution, nor are decisions guaranteeing the right to birth control and same-sex marriage.
"I fear none of those things are written in the Constitution," Sotomayor said. "They have all, like Marbury v. Madison, been discerned from the nature of the Constitution."
I don't agree with everything in Professor Somin's post, but I agree with every single word of these two paragraphs:
Justice Sotomayor is wrong to suggest that judicial review isn't written in the Constitution, but must be inferred from its "nature." The idea that judicial review is an atextual power that was somehow invented by John Marshall in Marbury v. Madison is a longstanding trope. But it's wrong, nonetheless. Article III of the Constitution specifically states that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."
The power to decide "all Cases… arising under this Constitution" necessarily includes the power to rule that state and federal laws violate the Constitution and therefore cannot be enforced. Judicial review was widely understood to exist long before Marbury, and that case was far from the first time federal courts invalidated a law because of its unconstitutionality. State courts also had a long history of judicial review, including pathbreaking decisions striking down slavery as a violation of the Massachusetts Constitution.
The claim that Marbury was atextual and non-originalist has long been used to discredit originalism and defend living constitutionalism, but there's simply no basis for it. I would add that judicial review is plainly described and endorsed in Hamilton's Federalist 78, from which Marshall borrowed heavily without attribution.
The "widely understood" link above is to Scott Gerber's outstanding book A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press 2011). One could also mention extensive law review treatments by William Treanor and by Saikrishna Prakash & John Yoo.
Posted at 6:08 AM