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Image, this and following pages-Dawn Hudson

Judicial Review


The power of judicial review of statutes to enforce the Constitution

can be implied from the text. We could hardly do without a check keeping the use of legislative power constitutional, and the Supreme Court is the best venue. 

But in a subset of these cases,

where the Constitution’s text itself can be affected by a decision,

we also need a secondary check,

on the power of judicial review (see In Reality, Neither Final nor Infallible). 


No power over the Constitution that is as easily exercised as a ruling can be checkable only by a process as difficult as

Article V amendment.


​Article III, Section 2:


"The judicial Power shall extend to all Cases, in Law or Equity,

arising under this Constitution [...]"

Article VI:


"This Constitution,

and the Laws of the United States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made,

under the Authority of the United States,

shall be the supreme Law of the Land;"



Because Article III limits the judicial power’s jurisdiction to cases arising under the Constitution, giving it no authority over the text itself (see Restoring the Preamble),

no such case is actually justiciable. Any attempt to reduce or qualify the legal force

of the text must take the form of a proposed amendment.  


Articles III and VI both check judicial review to at least this extent, preventing it from limiting the Constitution’s action. They also prohibit Constitutional doctrines (which are also implied, not expressed) from limiting the Constitution’s action. The absence of either check would grant the Court a non-Article-V Amendment power over the Constitution itself, which was never intended. But the history of the high court might suggest the opposite (see
The Rule of Law). The Framers’ intent would be plainer with a process clause for this check in the text. ​


And the text provides one.