516
Interpreting and Preserving the Constitution
in hypertechnicalities. ‘‘[T]he natural and obvious sense of its provisions,
apart from any technical rules,’’ said Hamilton, ‘‘is the true criterion of
construction.’’
Writing in Federalist No. 81, Hamilton asserted that ‘‘there is not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect, than may
be claimed by courts of every State.’’ It was clearly understood ‘‘that the
Constitution ought to be the standard of construction for the laws, and
that wherever there is an evident opposition, the laws ought to give place
to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory
of a limited constitution.’’ It would thus seem, he concluded, ‘‘that the
supposed danger of judiciary encroachments on the legislative authority,
which has been upon many occasions reiterated, is in reality a phantom.
Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to
amount to an inconvenience, or in any sensible degree to affect the order
of the political system.’’ Should the judges get out of hand, there were
ample means through the checks and balances system to restore constitutional government. In the first place, judges could be removed by ‘‘the
important constitutional check’’ of impeachment. And in the second place,
the Supreme Court’s appellate jurisdiction was subject to legislative control, and ‘‘this will enable the government to modify it in such a manner
as will best answer the ends of public justice and security.’’
sugge st e d re a di ng
Henry J. Abraham, The Judicial Process (New York: Oxford University Press, 1980).
Elizabeth K. Bauer, Commentaries on the Constitution, 1790–1860 (New York: Russell
and Russell, 1952).
Raoul Berger, Government by Judiciary. 2nd ed. (Indianapolis: Liberty Fund, 1997).
James E. Bond, The Art of Judging (New Brunswick, N. J.: Transaction Books, 1986).