Bench Memos

Judicial Review and All That Jazz

Just a point of clarification in the ongoing Ramesh-fest: I do not, as Anthony Dick suggests, profess a belief “that the Constitution does not authorize judicial review of congressional enactments.”  I merely profess a belief that the Constitution does not make the judiciary the guardian of all its metes and bounds.  Some of them, but not others.  Inasmuch as the Constitution never exactly mentions what we now call “judicial review” (but which no one called that until the twentieth century), we must reason by inference from certain things the Constitution does say.  What it does not say, and what is very difficult to derive by any such inferences, is that any and every congressional enactment that might be plausibly regarded as unconstitutional is subject to being authoritatively invalidated by judges.  I don’t really think you can get there from the Federalist, either.

We are agreed on what “modern practice” has done to the Constitution.

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