Does the Implied Power of Judicial Review lead to “Living Constitutionalism”? [No. 86]
Articles,  Blog

Does the Implied Power of Judicial Review lead to “Living Constitutionalism”? [No. 86]


There is no judicial review clause in Article III. That’s a really, really important point that
people need to focus on and remember. And in that respect, the US Constitution differs
from the post-1945 post World War II constitutions around the world…They have judicial review
clauses, and they only, usually only give to one entity, the supreme court or the constitutional
Court, the power to enforce the Constitution. Under the US Constitution of 1787 the power
of judicial review is an implied power…. The implied power of judicial review does
not include an implied power to evolve the Constitution or to engage in living constitutionalism. In fact, the text of the Constitution, specifically
bans that. Article V of the written constitution specifies
a very onerous process for amending or changing the Constitution whereby one needs the approval
of two thirds of both houses of Congress and three quarters of the states, which today
means 38 out of 50 states. The supremacy clause of article six says,
this constitution, the laws made pursuant to it and all treaties made or which shall
be made are the supreme law of the land. Well that means the Constitution and laws
made pursuant to it are the supreme law of the land. There’s nothing in there about supreme court
precedents being the supreme law of the land. Under our constitution as it is written, with
the power of judicial review being only an implied power, the Supreme Court simply only
has the power and, in my opinion, only should have the power to enforce the text of the
written constitution and it’s amendments against unconstitutional laws or acts of the president
or acts of the states.

Leave a Reply

Your email address will not be published.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