210 Politics and the judiciary
ally meaningless without interpretation. What is the exact meaning of ‘No
person shall be... deprived of life, liberty or property, without due process
of law’, a provision of the Fifth Amendment to the Constitution adopted as
part of the Bill of Rights in 1791? What exactly is entailed by ‘due process
of law’? Or take the Commerce Clause of the Constitution, which gives to
Congress the power ‘to regulate commerce with foreign nations, and among
the several States, and with the Indian Tribes’. What exactly is ‘commerce’?
Does it include the manufacture of goods or simply trading in the finished
products; does commerce include ships, trains and aeroplanes, banks, insur-
ance companies and atomic energy plants? The problems are endless. Who
then should decide what the Constitution means and then apply that inter-
pretation to specific cases? The Constitution makes no direct reference to
this problem other than the provision of Article III that ‘the judicial power
shall extend to all cases, in law and equity, arising under this Constitution,
the laws of the United States, and treaties made, or which shall be made,
under their authority.’ However, in the Federal Convention in Philadelphia in
1787 and in contemporary writing there is evidence that the members of the
Convention were aware that the Supreme Court would have the power to in-
terpret the Constitution and to declare null and void congressional acts that
conflicted with the Constitution. Alexander Hamilton, in number 78 of the
Federalist Papers, published in 1788 before the ratification of the Constitution,
gave a very clear explanation and defence of the right of the Supreme Court
to act as the arbiter of the constitutionality of the acts both of the legislature
and of the executive, concluding that the duty of the Court ‘must be to de-
clare all acts contrary to the manifest tenor of the Constitution void.’
The power of the Supreme Court to exercise this ‘judicial discretion’, in
Hamilton’s words, by no means went unchallenged. The Court was accused
of aspiring to judicial supremacy, and bitter attacks were made upon it. Even
its power to invalidate the acts of state legislatures was contested, in spite of
the Supremacy Clause of the Constitution, which provides that the Constitu-
tion and laws of the United States ‘shall be the supreme law of the land...
the laws of any State to the contrary notwithstanding.’ Gradually, however,
the Court asserted itself. In Chisholm v. Georgia in 1793, and Fletcher v. Peck in
1810 it established its authority to set limits to the power of state govern-
ments. In 1803 in Marbury v. Madison, the Court for the first time announced
that the federal Congress had acted unconstitutionally. In later cases the
Supreme Court made clear that it would enforce the Constitution against
the acts of federal and state officials and would uphold the rights of the in-
dividual, as it interpreted them, against the power of government. Thus did
the Court establish a form of judicial supremacy over the parts of the govern-
ment; but, as we shall see, this does not mean that the Court is completely
unchecked by these other parts. There is, of course, the ultimate power to
amend the Constitution, vested in Congress and the state legislatures, or
state conventions. Even then, however, the interpretation of constitutional
amendments and their application to judicial disputes is in the hands of the