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I see your point, and I often bring this up to so-called "textualists" to point out the absurdity of being a "pure" textualist.

But given the notes on the Federal Debates and what else I have read, I would have to respectfully disagree that the Founders did not intend to give the judiciary such power. Madison, the man whom you quoted, should be especially noteworthy, since he advocated giving the judiciary a MUCH stronger role in government; see especially the Notes on the Federal Debates for July 21. Madison was a proponent of the judiciary having a central policy role in the passage of legislation, issuance of advisory opinions, etc.

You make much of the fact that the const. does not specifically grant to the judiciary such power, and I agree, that is a solid fundamentalist argument. However, for instance, Art. I, Sec 8 doesn't give Congress the power to charter a national bank, but one of the first Congresses, many of the members of which were present at the constitutional convention, passed a bill establishing a national bank.

I think Jefferson's thoughts on the subject are relevant, and I think that he acknowledges that the judiciary has such power, but I think that he mis-states, slightly, in at least implying that no other branch has this power. Certainly the Congress can consider the constitutionality of a bill before it is passed, and the President can certainly veto a bill based on his perception that it is unconstitutional. It's just that the judiciary is the final stop on the journey, and rightly so, I think. There has to be a final arbiter somewhere, or otherwise the system breaks down. It just so happens that the judiciary is the most sensical place for the issues to come to rest.

As you noted, though, this is an essentially a moot question, since it is here, for better or for worse. I think, though, the notion of "judicial legislation" is much over-blown. Strict textualists simply don't, and can't, exist, otherwise the government would simply cease to function.

Even Jefferson, as strict a textualist as they came, signed off on the Louisiana purchase. Congress, of course, has no explicit textual authority to purchase land, but when push met shove, government has to work efficiently, and Napolean wouldn't have waited for Jefferson to pass a const. amend. So Jefferson signed off on it anyway, and I think rightly so. I know this departs from the "legislating from the bench" discussion, but I think it's relevant given much of the talk these days about "strict construction" and "textualism."

It seems to me in evaluating Madison, and Jefferson, the most important point is their reaction to the first use of judicial review and the first time the power was claimed by the courts.

I've given you a few quotes as to what they said about it, and perhaps more importantly, one should consider that M v M was specifically tailored to not go against Madison as Jefferson had stated they would ignore any such decision - essentially had Marshall ruled against them the it is almost certain the courts would never have been able to use the power of judicial review, as I've noted a power not given in the Constitution in the first place.

Further as to the notion that other examples of superceding the power given in the Constitution excuse this one, I don't buy it one bit. Again, a moot point, but a return to Constitutional government would be a godsend.

We now live in an era were the only check on the legislative branch is the courts, there are only a handful of checks on the presidency (executive orders ala Clinton's strike of the pen law of the land fame), and there is *no* check on the judicial branch - as R v W shows that in bold colors.

We do not live under a governmental system the founders would call their own. The current system is only partially democratic, thanks to the rogue judiciary and has barely any traces of federalism left. We live under the rule of men, not the rule of law, and far from taking 51% of the public to change our government fundamentally, the famed rule of the mob, it now takes only five *individuals*.