ABSTRACT

This chapter accounts how Chief Justice John Marshall undertook to establish and justify the Supreme Court's power of judicial review over Congress. It turns to the theory of interpretation to be considered, original intent, and to two prominent defenders of originalism—Robert Bork and William Rehnquist. The chapter weighs how a defender of originalism might argue that, in fact, judicial review serves to protect the terms of the social contract to which the people have consented. It pursues that the reader can deepen understanding of interpretation and judicial review by constructing and then assessing the normative assumptions lying behind different interpretive theories. Then, finally, the chapter weighs originalism's specific recommendations regarding constitutional interpretation along with the normative political assumptions about the purposes of judicial review that the chapter identifies and on which originalism rests.