Originalism and the Courts

Originalism and the Courts

What is the proper role of a judge?  Where did the power of judicial review come from?  What things are judicially enforceable? 

This unit in the No. 86 curriculum project explores the intersection between Judges and their duty to interpret the Constitution.

“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”

― Federalist No. 78

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.

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1 of 7: Does the Supreme Court have the expertise to make public policy decisions? [No. 86]

Are members of the Supreme Court or Congressmen better equipped to make policy judgments? Professor Steven Calabresi explains that Supreme Court Justices do not have access to the same types and quantities of information as legislators do. The Cour ... Are members of the Supreme Court or Congressmen better equipped to make policy judgments?

Professor Steven Calabresi explains that Supreme Court Justices do not have access to the same types and quantities of information as legislators do. The Court receives only abbreviated and focused facts that are pertinent to their cases. This is sufficient data to enable the Justices to make good legal decisions, but insufficient for thoughtful public policy decisions.

Professor Steven G. Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. He is Chairman of the Federalist Society's Board of Directors.

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

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