Jurisdiction
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reaching regulations of the Congress. Thus, the independence of the Judiciary, like the independence of the Congress and the independence of
the President, is far from absolute and is generally understood to exist
within the separation of powers and checks and balances framework.
In the final analysis, it may be seen that the idea of an independent
judiciary went hand-in-hand with the idea of a written Constitution. Federal judges, sworn to uphold the supremacy of the Constitution rather
than the supremacy of the legislature, would serve as guardians of the
Constitution, protecting it from subversion by the political branches. This
they would do through their inherent power, as judges, to interpret and
apply laws adopted by Congress and the States. As interpreters, their
task was simply to interpret the laws in the light of the Constitution. Although judicial precedents might later serve as a guide to correct interpretation, their ultimate standard, particularly in the early years, was the
Constitution itself—its underlying principles, wording, and text.
By this mode of reasoning, Federal judges would have very little discretionary authority. It was not their responsibility to make the law, as
that would be done by State and Federal legislatures. It was not their job
to execute and enforce the law, for that function would be performed by
the Chief Executive. Their sole task was to interpret the laws in cases or
controversies presented to them for resolution, to determine the intent
and meaning of the laws and weigh them against the intent and meaning
of the governing constitutional provisions applicable to the situation. It
was to be almost a mechanical function—to ‘‘discover’’ the law of the
case, not to make it.
To do this fairly and objectively, it would be necessary to remove the
judges from politics and give them independence of action. Through the
judges, it was said, the voice of the people sober would speak to the warring factions drunk with power.
Such was the limited role of the Supreme Court envisioned by the
Framers. Americans had little to fear, Hamilton assured the nation in The
Federalist, from so weak an institution. The members of the Supreme
Court would not be free, as the Anti-Federalists charged, to roam at will,
invoking their personal biases and secret preferences in the name of some
vaguely conceived ‘‘spirit’’ of the Constitution. Nor would they subvert
the ‘‘common sense’’ of the Constitution by masking their interpretations