Judicial Negation v. Legislation:

Thanks to Randy Barnett, now of Georgetown Law, for linking to my post on judicial nullification v. judicial supremacy.

A lively debate has ensued in the comments section. And Barnett has a great follow-up post which defends the doctrine of judicial review on originalist grounds.

Particularly, he notes the importance and legitimacy of using the device as often as needed. Andrew Hyman of ConfirmThem.com quoted Hamilton as standing for the proposition that judicial review should be used sparingly, that courts should defer to Congress's understanding of the Constitution, and step in and strike down legislative statutes only when there is an "irreconcilable variance" between what Congress is doing and what the Constitution commands.

To which Barnett responds:

One way of framing the issue of judicial deference is to ask: "deference to what?" Many mean "deference to the policy judgment of the legislature." With that proposition few disagree. But what the debate is also about is deference to the constitutional judgment of Congress that a particular act is within its powers. When Congress was exercising "legislative restraint" by considering itself bound by limited and enumerated powers, its judgment on this question may have merited the deference showed to it by Hamilton, Jefferson, and others as well. But when Congress has abandoned any sense of constitutional limits, then there would seem to be no real judgment of constitutionality to which to defer. In this, Congress has been aided and abetted by the post-New Deal Supreme Court and by law professors who would take judicial power even farther than the New Deal justices actually did.