Can the Supreme Court Change the Constitution Using Judicial Review? [No. 86]

Can the Supreme Court Change the Constitution Using Judicial Review? [No. 86]


One of the things that is very striking about
Article 3 of the US Constitution and which differentiates the US Constitution from most
modern constitutions like the constitution of Germany or Italy or Brazil or South Korea
is that Article 3 of the Constitution does not contain a judicial review clause. There is no specific clause empowering the
courts to exercise the power of judicial review. In fact, no such clause appears anywhere in
the Constitution. The way in which the Supreme Court correctly,
in my opinion, concluded that there was a power of judicial review in Marbury versus
Madison was by building on the argument that Alexander Hamilton made in Federalist No.
78. That argument is essentially that the Constitution
is by its nature supreme law. It reflects the will of the people and it’s
we, the sovereign people of the United States who made the Constitution, who ordained and
established it. Because the Constitution is supreme law, if
Congress passes a statute and the President signs it that contravenes the Constitution
or the Bill of Rights or any other amendment to the Constitution, then the courts have
the same authority that Congress and the President have in their own respective sphere of deciding
cases or controversies to follow the constitution, which is superior law, and not follow a statute
passed by Congress and signed by the president. Not only does the Constitution contemplate
judicial review of the constitutionality of laws, it also contemplates presidential review
of the constitutionality of laws. In fact, the Framers in the 1790s thought
that Congress itself had to evaluate first whether a proposed law was constitutional
and only second whether it was good as a matter of policy. In answer to the question can judges change
the meaning of the Constitution, the answer is clearly they can’t. The whole theory of judicial review is premised
on the idea that the Constitution is supreme law and it trumps ordinary law.

You may also like

2 Comments

  1. Not lawfully but they do it all the time anyway. Our governments are nothing less than CRIMINAL organizations. There's no enumerated power to judges/courts to "make law" either only to settle controversies lawfully brought before their court and issue OPINIONS! Also, note that court/judge opinions are NOT listed in Art. VI, CL2 as part of the Supreme Law of the Land either!

Leave a Reply

Your email address will not be published. Required fields are marked *