The Death of the Legalized Constitution and the Specter of Judicial Review
Type
There are multiple constitutional strategies for constraining politics and limiting government. Judicial review is most directly implicated in only one of those strategies, the "legalization" of the Constitution. The legalized Constitution consists of a set of specific, known rules that have the status of supreme law. This legalistic Constitution provides particular authority to the judiciary to interpret and apply constitutional law and review the actions of the other branches of government for their consistency with the Constitution. In the twentieth century, however, the preconditions of the legalized Constitution have collapsed, leaving the Court without strong authority for exercising the power of judicial review. Judicial authority can no longer be assumed, and its theoretical foundation is increasingly difficult to demonstrate.