On the other hand, in the United States Constitution itself the Founding Fathers gave the federal courts the authority to decide what the Constitution means and how it applies (Constitution of the United States, Article III, Sections 1 and 2):
Section 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....
Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...
is:
-
...the power “of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.
- and
...the right to determine actual controversies arising between diverse litigants, duly instituted in courts....
The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.
Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed. In fact, of the 56 signers of the Declaration of Independence, 25 were lawyers; and of the 55 framers of the Constitution, 32 were lawyers.
What our Constitution says and how it applies has been a matter for dispute almost as soon as the ink was dry.
Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came
Marbury v. Madison decided in 1803; and
McCulloch v. Maryland was decided 10 years later, in 1813.
So, as the Founding Fathers provided in the Constitution, if there is disagreement about how the Constitution applies to the circumstances of a particular case, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (
Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):
....It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.....
.
See also Madison in Federalist No. 39:
....the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated....
And Hamilton in Federalist No. 78:
.......If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution 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. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, ....
.
The U. S. Supreme Court has been deciding cases arising under the Constitution for over two hundred years. Its decisions in those cases affect the lives and property of real people in the real world. And those decision of the U. S.Supreme Court are also used by the lower courts in deciding cases brought before them.
The U. S. Supreme Court has consistently ruled that rights protected by the Constitution are not absolute and that under the correct circumstances may be regulated.
As the Supreme Court said in
Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81 (1943), at 110:
… See for example Cox v. New Hampshire 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396, and Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. But that merely illustrates that the rights with which we are dealing are not absolutes. …
As further illustration of this fundamental principle —
- Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031(1942), at 571-572:
…Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem …
”
- In Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396 (U. S. Supreme Court, 1941) the Supreme Court upheld as constitutional a municipal ordinance which burdened the exercise of a right protected under the First Amendment by requiring a permit, for which a fee was charged, to hold a parade of procession on the streets was valid and enforceable.
- In Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Court upheld a Colorado law which restricted rights protected under the First Amendment by restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility.
- In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), at 629 (emphasis added):
...our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement….
In all such cases the Court analyzes the nature and significance of the right, the nature and extent of the the burden, and the importance of the governmental interests furthered by the imposition of the burden as part of the process of deciding whether a particular law regulating a right protected by the Constitution is, or is not, constitutionally permissible.
Reality is what happens in real life in the real world.
There are over 1.3 million lawyers in the U. S.
There are something on the order of 30,000 judges in various state courts and about 1,700 federal court judges.
Something well over a million cases are filed each year in the state and federal trial courts. Decisions affecting the lives and property of real people are being made every day in that system.
