At NRO Bench Memos, Ed Whelan responds to Randy Barnett: Against Euphemistic Defenses of Judicial Supremacy. The main point:
Quoting extensively from one of his law-review articles, Barnett presents what he sees as originalist evidence in support of the proposition that the founding generation understood the “judicial Power” to include the power “to nullify or invalidate a law”—in other words, to wipe it out of existence such that there is nothing left of the law for the president or Congress to enforce. But Barnett’s article pervasively conflates the power of judicial review with what he calls the power of “judicial nullification.” As I’ve made clear, the power of judicial review enables courts to decline to apply laws they deem to be unconstitutional. …
Nothing in this narrow concept of judicial review means that a court, in declining to apply a law on the view that the law is unconstitutional, thereby wipes the law out of existence. The Founding Era evidence that Barnett offers is entirely compatible with the narrow concept of judicial review. So, yes, federal judges, in the course of deciding cases, “will declare [a law] to be void” (or, as Marshall puts it in Marbury, “entirely void”), “could declare an unconstitutional law void,” will “consider [unconstitutional laws] as null & void,” and so on. But none of this speaks with clarity or force to the judicial-supremacist claim that other governmental actors must abide by a federal judge’s view that a law is unconstitutional.
He also has a further response to my initial post.
Posted at 11:19 PM