Controversial Books | Page 537

Jurisdiction 515 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