Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World?

28 Pages Posted: 21 Aug 2006

See all articles by John C. Eastman

John C. Eastman

Claremont Institute Center for Constitutional Jurisprudence

Abstract

Prepared to commemmorate the bicentennial of the Supreme Court's landmark decision in Marbury v. Madison, this article explores the limits of the original holding, its expansive interpretation in the 20th Century to claims of judicial supremacy, even exclusiveness, in constitutional interpretation, and the various theories that would support such claims. The article explores in some detail the particularly troubling claim of judicial power to create new, unenumerated rights when the Court itself has rejected the foundational, natural rights principles that would lend legitimacy to the enterprise.

Keywords: Supreme Court, Marbury v. Madison, Unenumerated Rights, Judicial Supremacy

JEL Classification: H10, H11, H12, K40, K49

Suggested Citation

Eastman, John C., Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World?. Harvard Journal of Law and Public Policy, Vol. 28, pp. 714-740, Summer 2005, Available at SSRN: https://ssrn.com/abstract=925435

John C. Eastman (Contact Author)

Claremont Institute Center for Constitutional Jurisprudence

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HOME PAGE: http://https://www.claremont.org/center-for-constitutional-jurisprudence/

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