Would the courts enforce such a law in the face of an express constitutional provision? Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. at 177–78. Embarrassed by the claim of the nullificationists in later years that his resolution supported their position, Madison distinguished his and their positions and again asserted his belief in judicial review. “Mr. Prudential arguments seek to balance the costs and benefits of a particular rule. . cit., 341–406. His remarks in the Philadelphia Convention, in the Virginia ratifying convention, and in The Federalist, cited above, all unequivocally favor the existence of judicial review. The courts adjudicate the constitutionality of the governmental actions under review to ensure their validity. 3 I. Brant, James Madison: Father Of The Constitution, 1787–1800 460–464, 467–471 (1950); Report on the Resolutions of 1798, 6 Writings of James Madison, op. “It is emphatically the province and duty of the judicial department to say what the law is. at 553–54. Furthermore, it was contended that cases did not “arise” under the Constitution unless they were brought in the first instance by someone claiming such a right, from which it followed that “the judicial power of the United States” did not “extend” to such cases unless they were brought in the first instance in the courts of the United States. This is of the very essence of judicial duty.”743, “If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.”744 To declare otherwise, Chief Justice Marshall said, would be to permit the legislature to “pass[ ] at pleasure” the limits imposed on its powers by the Constitution.745, The Chief Justice then turned from the philosophical justification for judicial review as arising from the very concept of a written constitution, to specific clauses of the Constitution. 1456 (1954). Clause 1. The U.S. Constitution does not explicitly mention judicial review. It obviously supports nonoriginalism. “Judicial power, as contradistinguished from the powers of the law, has no existence. It is not a law unless all 3 branches do not declare a it unconstitutional, but if any one of the 3 believe the act to be unconstitutional then it is. A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate over Judicial Review, 1790–1961, in C. Beard, The Supreme Court and the Constitution … And it should be noted that at times the Court has absorbed natural rights doctrines into the text of the Constitution, so that it was able to reject natural law per se and still partake of its fruits and the same thing is true of the laissez faire principles incorporated in judicial decisions from about 1890 to 1937.780, “It is but a decent re- spect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed,” wrote Justice Bushrod Washington, “to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt.”781 A corollary of this maxim is that if the constitutional question turns upon circumstances, courts will presume the existence of a state of facts which would justify the legislation that is challenged.782 It seems apparent, however, that with regard to laws which trench upon First Amendment freedoms and perhaps other rights guaranteed by the Bill of Rights such deference is far less than it would be toward statutory regulation of economic matters.783, If it is possible to construe a statute so that its validity can be sustained against a constitutional attack, a rule of prudence is that it should be so construed,784 even though in some instances this “constitutional doubt” maxim has caused the Court to read a statute in a manner that defeats or impairs the legislative purpose.785 Of course, the Court stresses that “[w]e cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.”786 The maxim is not followed if the provision would survive constitutional attack or if the text is clear.787 Closely related to this principle is the maxim that, when part of a statute is valid and part is void, the courts will separate the valid from the invalid and save as much as possible.788 Statutes today ordinarily expressly provide for separability, but it remains for the courts in the last resort to determine whether the provisions are separable.789, Adherence to prec- edent ordinarily limits and shapes the approach of courts to decision of a presented question. . . 78 and 81, at 524–530, 541–552 (Hamilton).

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