Judicial Power

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.