The judicial review fallacy

We are attending the 5th Annual Constitutional Law Colloquium at the Loyola University Chicago Law School, and we are troubled by the following syllogism on which most North American constitutional scholarship is based — Major premise: One of the purposes of a constitution is to set limits on political power. Minor premise: The constitution is fundamental law. (Fine, we agree with these premises.) Conclusion: Courts have the power of “judicial review” because it is their job to enforce the constitution. This conclusion, however, is a fallacy. It does not follow from the premises as a matter of practical reality. Judicial review has no bite (and can produce a dangerous constitutional crisis) when the person or entity who is violating the constitution is the president or prime minister or parliament. Does a court really have the power to order the president’s arrest or the arrest of a majority of the members of parliament? No court possesses this power as a matter of fact.

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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