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Interpreting and Preserving the Constitution
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