Lawrence Goldstone’s book, The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review (Walker 2008) promises to be an illuminating contribution to the controversy over whether judicial review, let alone judicial supremacy, was made up, as Justice Scalia contends, or rather in some sense intended by the Founders and ratifiers of the Constitution. Chapter Two is one of the best discussions of the idea of a revisionary council I’ve come across as well as plainly demonstrating the radical conflict over the Court’s role in such a council and just what its independent role should be. It seems clear the Convention cannot be used as dispositive evidence that the role of the Court to strike down legislation somehow was assumed or that there was anything resembling a consensus on just what this role should be. I haven’t finished reading the book yet, but if the first few chapters are any indication of what’s to come, I eagerly await Goldstone’s narrative.
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