Judicial Power

The federal courts do not have the power to change the Constitution at will. One of the innovations, one of the advantages of having a written constitution was that that constitution was antecedent to and superior to all branches of the government including the judicial branch, including the federal courts. The Constitution was intended to control the operation of the federal judges just as much as it was intended to control the operation of other government actors. Courts do have the power of judicial review. Judicial review simply recognizes that there is a conflict of laws issue going on when a court has to decide a case under federal law, because the Constitution is also a law. And when you have two different laws, the question sometimes arises which law applies. This is a conflict of laws problem. Courts have to decide what law applies and sometimes they have to decide what law is superior to another law. So it was not an innovation to conclude that where there are two conflicting laws the courts had to decide the operation of each. What Chief Justice Marshall did in Marbury v. Madison was actually quite uncontroversial to the founding generation. They expected the federal courts to give effect to the Constitution over inconsistent federal laws. The founding generation in the Constitutional Convention, in the state ratifying conventions, early jurists, all expected the federal courts to exercise this power of judicial review. The power of judicial review is the power to determine the meaning of the Constitution and thereby to determine the operation of the Constitution, the legal effect of the Constitution. This is not a power to change the meaning of the Constitution. It is not a power to change the actual legal content of the Constitution.