Front Page Titles (by Subject) POINTS TO REMEMBER - Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government
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POINTS TO REMEMBER - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 
Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).
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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.