Can Courts Change the Constitution at Will? [No. 86]
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Can Courts Change the Constitution at Will? [No. 86]

September 23, 2019


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.

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  1. I think that this conclusion is incorrect……..……………………………………………………………………………………………………………………………………over all the constitution is superior to the supreme court because the court gets it's powers from the document there are parts of the constitution that can be unconstitutional and can be struck down by the supreme court

  2. Substantive Due Process gives judges WAY too much power that wasn’t there in the first place. I believe that if we were to use the privileges and immunities clause in the way it was supposed to under the original meaning, we would find a much more efficient way to interpret the constitution than our current system.

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