Today we have a Constitutional point to ponder, “judicial review,” the process by which the Supreme Court determines whether a law is Constitutional. An earlier post introduced the concepts of legal formalism and legal realism. In practice we do both, formalist most of the time but realist when necessary.

For the folks who still bristle at realism, consider this: judicial review is a bedrock legal principle, but it’s nowhere in the Constitution. At no point is it explicitly written that the Judiciary has the power to overrule the Legislature. Many of you will know that judicial review was established in the 1803 in the landmark case, Marbury v. Madison. If you’ve never read it, check it out.

While judicial review has cemented its role in our legal system, the precise (political) role of the Courts is still subject to debate, much as it was in 1803 when Constitutional luminaries like Thomas Jefferson disagreed with Chief Justice Marshall’s reasoning, being weary of seemingly new powers vested in judges with lifetime appointments.

There’s nothing wrong with taking a *more* formalist approach to the judiciary. There’s much to be said about consistency in the law, and as a society we should set clear rules and hold people to them. However, since 1803 the Supreme Court has recognized that there is more to the Constitution than the plain, literal text. That is a fact, so let’s spend our time honestly debating where the line is drawn, not if it exists.

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