OUR UNWRITTEN CONSTITUTION….Josh Chafetz at OxBlog is studying the British constitution and remarked a few days ago that he gets tired of the predictable jokes about his chosen field. The Brits, you see, have a constitution, but it isn’t written down. Ho ho ho.

I believe that I myself might have made just such a snarky comment at one point or another, and I hereby apologize. What brings this to mind is that Glenn Reynolds is blogging from the Marbury vs. Madison symposium today, which reminds me that people in glass houses should be careful about their pre-emptive strikes.

Marbury vs. Madison is an 1803 Supreme Court case in which the Supreme Court ruled that the Supreme Court is allowed to toss out laws that the Supreme Court thinks are unconstitutional. Got that? And in case you think this is a gross oversimplification, it’s not, really. Basically, the Supreme Court gets to decide on the constitutionality of laws because it says it can ? and no one ever really challenged them on it.

Judicial review is one of the cornerstones of the American constitutional system, but it’s not written down anywhere. You won’t find it in the text of the constitution and you won’t find any congressional act that authorizes it. But, like that unwritten British constitution, it’s nonetheless as real and as important as any piece of parchment.

The constitution is a marvelous document, but it’s not really the basis of American government. After all, the old Soviet constitution sounded pretty good on paper too. Rather, the real basis is the collective acceptance of the constitution’s principles by the American people ? even when the chips are down ? and our willingness to constantly reinterpret it to fit our needs. That’s what makes it worth the paper it’s printed on.

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