Bill has advanced degrees in education and political science. He has been a political science teacher for over 27 years.
In 1787, 39 men signed the Constitution of the United States, the longest-lasting national government on paper. While some countries regularly change governments (Italy has had over 50 governments since 1946), the United States has lived under the same government drafted by those 39 men at Independence Hall over 220 years ago.
But any written document, like a contract, is subject to interpretation. So, how about the Constitution? How should it be interpreted? Former Chief Justice Charles Evans Hughes provides a modern answer to that question. In a 1907 speech Hughes stated “we are under a Constitution, but the Constitution is what the judges say it is...” Today, though Hughes is dead, he leads the chorus of jurists and judicial activists that want to remake society in their own image, and try to use the Constitution to do it.
Is Hughes right? Is the Constitution whatever the judges say it is? Does the Constitution have no meaning independent of the jurists who interpret it? If so, get ready because if the Supremes are the voice of the Constitution, if they have the final word on constitutional meaning, then we no longer live under the rule of law—instead, we have government by tribunal. If the Constitution is whatever the judges say it is, then they can make it say whatever they want. “Up” becomes “down” under Hughes’ constitution.
How did we get to where the Constitution, that document that British Prime Minister Gladstone called the “the most wonderful work ever struck off at a given time by the brain and purpose of man,” is subordinate to judges and lawyers rather than the law of the land? I can’t offer a comprehensive analysis, but I can point to two beliefs that have undermined the Constitution’s status as the "law of the land."
Legal Positivism—One belief is legal positivism, the view that the law contains no divine or moral imperative, but is only a creation of society. For the legal positivist, there is no “higher law” to which man’s law must submit. The will of the lawmaker is the only authority and he need not appeal to heaven or nature to justify his decisions.
The implication of legal positivism is that the Constitution does not rest on a set of moral and ethical absolutes. Rather, it is only a creation of the men that drafted it. And if the Constitution is merely a social creation, then it can be easily discredited. For example, some political correctness movements have tried to discredit the founding of the Constitution because it was drafted by males of European descent, some of which owned slaves. Now, none of this is relevant if the Constitution rests on a set of timeless principles. It's the principles that validate the product (in this case, the Constitution), not the condition of the men that drafted it. But if it’s only the creation of the men who drafted it, then it can be easily dismissed or held captive by its caretakers.
Deconstructionism—More recently there has been a movement in academia called deconstructionism in which interpreters of text ignore the intent of the author in ascribing meaning to the text. Instead, the deconstructionist emphasizes the reader’s subjective interpretation. The implication for the Constitution is that it has no intrinsic meaning, but only that meaning given to it by the reader.
Today, law schools teach students "the Constitution is what the judges say it is...” Imagine if other academic disciplines applied the same level of hubris: “A bridge is whatever an engineer says it is.” or “A medical procedure is whatever the doctor says it is” or “A monetary deposit is whatever the banker says it is.” This philosophy, which borders on being laughable in other professions, is embraced by the legal cognoscenti as gospel.
For our rule of law to work properly, it must be predicated on a prior truth that while we give judges the power to arbitrate the law, their decisions could be wrong. We need to remember that when justices write an opinion, it's just that—an opinion. In case you think I’m advocating some new or radical assessment, I’m not: justices understand the distinction between the Constitution and the interpretation placed on it by them and have stated so in their opinions. Justice Felix Frankfurter stated that “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it (1).” Also, William O. Douglas, the quintessential activist, said in Coleman v. Alabama, that a judge “remembers above all that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put upon it (2).” Douglas and Frankfurter believed that they did not take an oath to uphold interpretations of the Constitution rendered by other judges; rather their oath was to the Constitution itself.
The Constitution has a meaning that is independent of the judges and attorneys who mull over it and that meaning is rooted in the historical intent of the drafters of the document. If the American people and their representatives believe that some features of the document are outdated or mistaken, then the people and their representatives can lawfully amend it. But let's not have any amending via judicial decisions where justices make the Constitution say whatever they want it to say.
While we cannot determine “original intent” with the kind of scientific accuracy that we could, say, determine the orbit of the planets, we can still determine intent in the same way that we would determine intent in a contract made between two parties. To do otherwise, is to invite a slugfest over constitutional meaning in which power, not law, prevails.
Hughes’ thesis is built on relativism which leads to government by power rather than government by law. Both legal positivism and deconstructionism magnify this relativism. Legal positivism denies that law has transcendent value. That means that actions such as murder or rape aren't really wrong; they're only wrong because the lawmaker says it is. As for deconstructionism, it falls stillborn from the lips of the professors that proclaim it. Deconstructionists embrace the dangerous idea that a text has no objective meaning. But, as philosopher William Craig recently reminded us, no one deconstructs the instructions on the bottle of rat poison.
If positivism and deconstructionism are the operating principles, then justices like Breyer and Sotomayor rule the roost. They operate as if the Constitution is clay in the hands of the judges. But, instead of a Constitution of clay that conforms to the power of the justice, how about one that serves as a chain on the government? That's exactly how Thomas Jefferson viewed the Constitution. Jefferson stated, “In questions of political power, speak to me not of confidence in men, but bind them down from mischief with the chains of a Constitution.” In Jefferson’s mind, the Constitution had to be more than silly putty in the hands of judges. The Constitution is hard, not soft; it serves as a foundation for our highest man-made law. The Constitution must be independent of the judge's subjective preferences if the judges, like the rest of us, operate under the rule of law.
Do we still have a Constitution? Yes. Does it still work? Absolutely. But unfortunately it suffers in the hands of some judges who manipulate it to serve their social ends rather than faithfully interpret what it says and state how it should be applied.
American citizens need to reclaim their Constitution. It is their political birthright. While we entrust decisions about the Constitution to elected and appointed officials, the Constitution is not owned by them as officials. They are the caretakers, but we are its possessors. Sometimes the Court is plain wrong and the American people need to say so. The Constitution does not grant a woman the right to conspire with her doctor to kill her preborn child, does not protect pornography, does not terrorize school children with punishment for bringing a Bible to a public school class, and does not prohibit the posting of the Ten Commandments anywhere.
Armed with some backbone and knowledge about what the Constitution, we can begin to regain through knowledge what we’ve lost in ignorance.
(1) Graves v. O'Keefe, 306 U.S. 466, 491-2 (1939).
(2) 399 U.S. 1, 22-3 (1970).
For Further Research
- Stanford Encyclopedia of Philosophy Article on "Constitutionalism"
- Wikipedia Article on "Deconstruction"
- Stanford Encyclopedia of Philosophy Article on "Legal Positivism"
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.
Mark Miglio on March 07, 2018:
William R Bowen Jr
I think we must remember that we do have the power to demand that our Congressmen pursue impeachment on the dim-witted socialists in the Supreme Court.
I would like to see a grassroots movement for impeachment, naturally, of course, it would be hard brought to fruition but such a movement could become motivation for the forces of goodness and good sense.
I very much agree with your post and also very much appreciate your line of logic in reply to Madisonian's comments.
Oh, how I hate the ways in which the writing of the Constitution will forever be divisive, I imagine they not have done a more precise job.
William R Bowen Jr (author) from New Bern, NC on January 15, 2013:
Why do you assume that Hughes’ claim stops merely at those areas that are ambiguous or those that require additional interpretation? Hughes’ statement implies no such limits and does nothing to indicate that the Court’s interpretation of the Constitution is constrained by mere ambiguous phrases or the attempt to apply an older text to more recent legal controversies. In fact, Hughes’ claim could be used to support the position that the Court can take any part of the Constitution and apply any meaning it wishes, no matter how contrary that meaning is to the ordinary use of language. In fact, that is exactly what the Court did in Roe v. Wade. Under the euphemism of “privacy” (a right not in the Constitution), the Court used bits and pieces of the Constitution to construct a right that a woman could conspire with a doctor to kill her unborn child.
Second, it’s a bizarre concept that the judge applies the Constitution to a legal dispute and that that application creates “meaning” and that that “meaning” is now what the Constitution “means.” Whatever “meaning” that might be ascribed to the Constitution is to be found in that meaning its creators gave it. We tend to forget that what the Court provides is an opinion on the law, and not the creation of a new law and certainly not a new Constitution every time the Court lights on a new controversy.
Thank you for these informed comments...
conradofontanilla from Philippines on January 12, 2013:
There are secular morals as there are religious morals. If only religious morals prevail, it would be like the dictatorship of Salazar who employed papal encyclicals in Portugal. In the Philippines we have what is called separation of state and church. There was a time, for 5 centuries, when religious morals prevailed in Europe. The pope launched nine crusades against Islam. These crusades resulted in the slaughter of both Christians and Muslims.
Madisonian on January 12, 2013:
In his statement Hughes was observing the obvious: to apply ambiguously worded Constitutional provisions to specific cases requires interpretation, and the power to interpret creates meaning, not just applies it. Consider the Second Amendment. If a case reaches the Supreme Court concerning the constitutionality of a ban on personal possession of assault arms, the Court has to apply the language "the right . . . to keep and bear arms, shall not be infringed." Does this language apply only to firearms, or does it apply to Sidewinder missiles as well, and if only to firearms, does it apply to automatic firearms as well as semi-automatic ones? Does it extend to 30-bullet clips? And so forth. In applying the Second Amendment in such cases, the nation's highest court creates meaning for it, and in this most real sense the Constitution becomes what the judges say it is. Yes, of course, the Constitution mandates directions or presumptions for interpretation, but the judges create the meaning for the Constitution, and that is all CJ Hughes meant.
William R Bowen Jr (author) from New Bern, NC on June 10, 2012:
First, it’s not so simple to say that a constitutional provision is a good one if it serves the purpose I wish and not a good one if it doesn’t. Constitutions are not created for the purpose of advancing political agenda “A” over political agenda “B”. Rather, they are to constrain the exercise of raw political power over its citizens. So, they have a long-term, salutary effect, regardless of whose political agenda is being served. A “constitutionalist” believes that the overall, long-term effect will be beneficial.
Anyone who embraces constitutionalism understands that, sometimes, his personal political agenda will be thwarted by the constitution. But the constitution limits all; this is a part of what it means to be ruled by law and not by men.
Finally, I’d say that your #2 and your appeal to morals are in conflict. Without God, there are no morals, only “preferences.” No one has yet offered an adequate end-run around the connection between God and morality.
conradofontanilla from Philippines on May 30, 2012:
Let's take two constitutional items: one an amendment that reduced the term of a president of the U.S. from unlimited (in the case of ex-President Franklin D. Roosevelt) to two years (for example ex-President Bill Clinton). Two: change of constitution. In the 1973 constitution of the Philippines there was no limit on the number of times an incumbent president can run and sit, if elected, as president. In the 1987 constitution of the Philippines, an incumbent president is not allowed to run for reelection for life. I have not read the intention of the framers of the 1987 constitution. Let's grant that it is a reaction to Marcos who reigned as dictator for 20 years. To me this constitutional provision serves well if the incumbent president is a bad one. But this provision does not serve well if the incumbent president is a good one. Let us grant that we agree on what is good and bad.
Suppose I believe that the incumbent president is good that is why I wish he could run for reelection with the expectation that he will be a good president again. I make a proposal that the 1987 constitution be amended to allow the incumbent president to run for reelection and that the same person can have two terms only as president. When I make this proposal I have in mind:
1. there is no scientific principle, like the path of the moon around the earth, to follow,
2. there is no god's command to obey,
3. I know that my proposal differs from the intention of the framers of the 1987 constitution,
4. My intention is to allow the continuance of the good deeds of the incumbent president in his next term with the assumption that he will behave the same way as he is now behaving,
5. Making this proposal is allowed by the 1987 constitution that allows constitutional amendments.
My proposal appeals to morals that includes social and political circumstances. Let's grant that my proposal is incorporated in the 1987 constitution. When a question will arise about the constitutionality of an incumbent president to run for reelection, the judge will invoke the amendment and its intent to rule that running for reelection is lawful. This demonstrates that the constitution is man-made.
I think it is important to take note of the intent because it reflects the political and economic circumstances. Tor instance the creation of the Tennessee Valley Administration. The intention, so I read Morris, the sponsor, was to control the floods and turn the power of the water for the benefit of people in the valley for navigation, irrigation and electricity. First it was vetoed by ex-president Herbert Hoover. Congress mustered two-third votes to present it again to the new president, F.D. Roosevelt who signed it into law because he agreed with the intention and phraseology of the bill.
William R Bowen Jr (author) from New Bern, NC on November 05, 2011:
Thank you WBA....I think we're on the same frequency....
firstname.lastname@example.org from upstate, NY on November 03, 2011:
"And if the Constitution is merely a social creation, then it can be easily discredited. For example, some political correctness movements have tried to discredit the founding of the Constitution because it was drafted by males of European descent, some of which owned slaves"
I think it comes down to someones worldview, are we subject to a higher law or is law merely the opinion of men? A similar thing could be said about rights do they originate with God or man? If they originate with God then those rights are inalienable but if they originate with men then their merely a gift of the government.
Good work here! We need to get the word out, people are just plain ignorant about how our government works!-WBA
William R Bowen Jr (author) from New Bern, NC on August 15, 2011:
Caspar C--To my knowledge, the quote by Hughes (BTW, his middle name was "Evans") is uncontested. If you know something different, I'd like to hear it. Yes, he made that statement prior to his serving on the Court. It's a reasonable assumption that he continued to hold the same view when he became a justice. Again, to my knowledge, that fact is also uncontested, but if you know something different, I'd like to hear it.
But, even had he never served on the Court, it's not the point of the article. The modern "living constitutionalist" acts as if the Constitution is a work in progress. Hughes' expression is simply a catchy way of expressing that idea.
Thanks for reading...
caspar_carrot on August 13, 2011:
What is your reference supporting Evans as the author of the statement "we are under a Constitution, but the Constitution is what the judges say it is...”? Also, Evans was Chief Justice from 1930 through 1941; in 1907, he was governor of NY. Your scholarship is very poor.
William R Bowen Jr (author) from New Bern, NC on November 21, 2010:
James, you're a kindred spirit. Thanks.
James A Watkins from Chicago on November 20, 2010:
Thank you for directing me to this splendid article. It is utterly fantastic. You had me nodding my head all the way through. It is captivating. You couldn't have done it better, my friend. I am with you.
William R Bowen Jr (author) from New Bern, NC on October 19, 2010:
John, I wanted to deal with a more modern attitude which is that the Constitution is merely the will of the justices. Marbury and judicial review is a different matter which has to do with who, procedurally, is going to have the final say on constitutional questions. Thanks for your insightful comments and suggestions.
John Miller on October 19, 2010:
Excellent article. I would have gone a bit futher back to Marbury v. Madison for some further insight into the devolopment of a judicial oligarchy.
I have long thought that the founders failed to close the circle of the Constitution by leaving the courts unaccountable to the public. Seems to me that a Constitutional Convention mandated every 50 years or so to review publicly within the electorate the landmark decisions of the courts would have kept us on a much more Constitutional path while allowing for changes in society, culture, etc.
William R Bowen Jr (author) from New Bern, NC on September 23, 2010:
I thought I had left you a comment earlier, but I guess I neglected it. Thank you for your kind remarks and for posting my article on yours. Hope its helpful.
Publius Huldah on August 21, 2010:
I linked to your magnificant article here in my last on CFP at http://canadafreepress.com/index.php/article/26721
The link is at "Charles Evans Hughes".
BTW, have you thought of submitting papers to CFP? CFP has a large readership, and this paper is certainly worth a wide audience.
William R Bowen Jr (author) from New Bern, NC on June 17, 2010:
When you say that concepts like civil rights are "more subjective" it sounds like you're implying that they might not exist. If they are merely abstract entities, subject to our interpretation, there appears to be no ground for our believing them to be good, but only "what we want."
As for your other comments about Jefferson and your judgmental comments about my "intentions," these are ad hominems.
Finally, I agree that the Constitution should change and that's why its framers added Article V which allows for amendment, which is the only honest way to change it.
William R Bowen Jr (author) from New Bern, NC on June 14, 2010:
There are several problems with your analysis. First, the analogy is fine: analogies are not meant to demonstrate exactness, just similarities. But second, constitutions are not merely conceptual and bridges are not merely physical. The Constitution is a physical document that was created at a definite time in the past. When we discuss the Constitution we are not simply discussing an idea or set of ideas. Bridges, furthermore, are not merely physical entities; they have a reality in the mind of their creators before they were drafted and before they were built.
Nick on June 01, 2010:
Your analogies are flawed. You cannot compare a bridge being "whatever the engineers say it is" to a constitution being "whatever the judges say it is", because a bridge is a physical construction and a constitution is conceptual and intellectual; physically just a document of ink and paper, but actually much more than that.
When it comes to concepts such as civil rights, meaning is much more subjective, ambiguous and open to interpretation than physical items, which are obviously and provably whatever they are using empirical evidence.
It's a little ironic that you quote Jefferson to support your argument - the very man who took a pair of scissors to a Bible and removed every supernatural reference and re-entitled it "the philosophy of Jesus of Nazareth". Among philosophers and academics you are going to have a hard time defending the case that the Constitution contains moral values with transcendent and objective value, because there is little, and only spurious, evidence of anything transcendent, and most of our human knowledge is based around subjective experience.
Lastly, please don't lament the use of the constitution for political ends, because that is exactly what you are trying to do in this article, which is written from a strict, conservative constructionist viewpoint. By your logic, we ought to be following the intentions and original meaning of the constitution, which would mean we only gave the vote to white,landowning men.
The constitution has good and it has bad. It is a document written by fallible men, so of course mistakes were made. It needs to change in the face of the modern world and new problems, and in order to do that we need to develop new interpretations.
jiberish from florida on May 12, 2010:
Bibowen, nicely written! Interpretation is 50 per cent if you have read or studied the law. In this administration, interpretation is what ever suits them and their agenda.
William R Bowen Jr (author) from New Bern, NC on May 12, 2010:
Stanislaus, the comment is pretty straight forward; there is little to misunderstand about it. Whether he was merely being descriptive or prescriptive is only secondary to my point. Even if he was being prescriptive, he should have pointed out that such a view is improper. You didn't address whether or not Hughes both stated the truism, and also believed the truism to be the correct approach to constitutional interpretation.
As for the Second Amendment, it's not poorly written. You cannot write a Constitution like a tech manual. There is usually a discussion about "original intent" on all points of current interest pertaining to the Constitution. I guess by your standard, the whole document is "so poorly written."
As for Scalia, I was impressed with the DC case. I listened to the arguments on Oyez and the discussion was largely a historical discussion and very little of it was sociological, which was refreshing.
Thanks for reading and for your comments...
Stanislaus Zybisko on May 12, 2010:
You have completely misunderstood what Hughes was pointing out. He was not advocating anything -- there was no hubris in that great man. He was describing how things actually work in the courts. His statement was practically a truism, but one which many people delude themselves into ignoring. For example, the Second Amendment is so poorly written that nobody can be sure what its "original intent" really was. So I think Justice Scalia in effect rewrote it to suit himself in the decision involving the District of Columbia's ordinances. Or maybe I've got it wrong -- perhaps he got the Witch of Endor to raise the dead to advise him -- Ah, so! That's how he always knows what the "original intent" was in all cases.
William R Bowen Jr (author) from New Bern, NC on October 04, 2009:
Tony & Publius--thank you for commenting and best wishes on HP.
Publius Huldah on October 04, 2009:
Very nice article!
Tony Ballatore on October 03, 2009:
I really enjoyed reading your take on these matters. I suspect that you and I would not agree on many points and issues, but on the point that the Supreme Court and its judges are '...caretakers.' we are in complete agreement. We have three branches to protect the citizen's interests; one branch can not be allowed to anneal aspects into subjective pulp.
Thanks for writing.
William R Bowen Jr (author) from New Bern, NC on August 29, 2009:
Thanks for the kind words. That's a real encouragement.
atomswifey from Michigan on August 29, 2009:
Man your hubs are the most moving and stirring ones I have read on here!
sometimes I get so stirred and moved by your words, that I actually cry.
This one really did it for me. I wish more people were like you and had the guts to say it like it is, both loudly and proudly!!