The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

POINTS TO REMEMBER

1. Through self-imposed rules of interpretation, derived in part from ancient law, Roman law, and English law, American judges interpret the Constitution and all laws and treaties according to established principles of judicial construction.

2. The basic interpretive task is to determine the intent of the Constitution, laws, and treaties, and to construe all instruments according to the sense of the terms and the intentions of the parties.

3. In the interpretation of the Constitution, the first rule is to examine both the general structure and the component parts of the document, keeping in mind its overall objectives and scope of power.

4. The function of the judge is to interpret the law, not to ignore its provisions and make the law. Judges have a special duty to maintain the integrity of the American constitutional process, to see that the requirements of the law are uniformly followed, and to hold all public officials, including themselves, to the same standards.

5. The Supremacy Clause of the Constitution establishes a hierarchy of laws, with the Constitution itself standing at the apex of the system. All laws and treaties must conform to the Constitution, and those that do not may be declared null and void by the Supreme Court through the exercise of judicial review.

6. The Constitution embodies the constituent or “permanent will” of the American people, which gives it a republican basis. Through the proper exercise of judicial review, the Supreme Court preserves the Constitution and perpetuates the will of the people.

7. There are basically four types of judicial review: the power of the Supreme Court to declare unconstitutional an act of Congress, a State law or constitutional provision, or an executive action, and the power to overturn a State court decision that questioned the validity of a Fed eral law or treaty or rendered an interpretation of the Constitution that was challenged by one of the parties.

8. In practice, the Supreme Court is the final interpreter of the Constitution, unless the Court’s interpretation is changed by the people and the States through the amendment process. Congress may also alter the Court’s jurisdiction, thereby making the State courts and lower Federal courts the “court of last resort.” In neither theory nor practice, however, is the court the exclusive interpreter of the Constitution.

9. Historically, the advocates of State’s Rights have tended to favor a “strict” interpretation of the Constitution, and those favoring a more powerful, centralized regime have tended to support a “loose” construction of the Constitution.

10. Although Federal judges individually enjoy considerable independence, the independence of the judiciary itself is substantially limited by the separation of powers and checks and balances system.

11. The Federal judicial power is the power of a Federal court to decide and pronounce a judgment and carry it into effect between parties who bring a case before it. It is distinguishable from jurisdiction, which confers authority on a court to exercise the judicial power in a particular case.

12. The Constitution confers the judicial power on the Federal courts, but it is the Congress which confers jurisdiction; and without jurisdiction a Federal court cannot decide the case. The responsibility of limiting the power of the Federal judiciary and preventing abuses of the judicial power rests primarily with the Congress.

A constitution,” wrote Alexander Hamilton in Federalist No. 78, “is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.” In carrying out this responsibility, what rules or principles of construction are the judges supposed to follow? The Constitution is silent on the question and thus offers no guidance. Congress is prohibited from imposing any rules of interpretation. It may regulate the jurisdiction of the Federal courts and tell the judges when they can decide a case, but it is prohibited by the separation of powers principle from instructing the judges on how they should interpret it; for the power to interpret the Constitution in a case or controversy is the essence of the judicial power, and thus beyond the reach of both Congress and President.

Accordingly, it is up to the judges themselves to develop and adopt their own rules of interpretation, just as members of Congress are free to adopt their own rules of legislative procedure (about which the Constitution is also silent).

It should not be concluded from this observation, however, that judges are given free rein under the Constitution to interpret it as they please. If this were the case, they might substitute their own intentions for those of the people, as expressed in the Constitution, and interpret the Constitution out of existence. A more accurate and reliable reading of the Constitution and the Convention debates suggests that the Framers assumed that the judges would interpret the Constitution according to established principles of Anglo-American law.