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Does the Implied Power of Judicial Review Lead to “Living Constitutionalism”?

Where did the power of judicial review come from? Professor Steven Calabresi explains that, unlike other constitutions, the US Constitution only contains an implied power of judicial review. The text of the Constitution prohibits the use of this power to change the Constitution itself. Change must come through the difficult amendment process. The power of judicial review is only the authority to enforce the Constitution as written. https://youtube.com/watch?v=AOUKNK4FIpM


There is no judicial review clause in article three. 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 two 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 five 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.

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