Hughes' Hubris: Is the Constitution "What the Judges Say it is"?
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.
Well, 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” a law to which man’s law must submit. The will of the lawmaker is the only authority that is necessary, not a divine will or nature.
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.
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- The Textbook Constitution: Distinguishing Fact From Opinion
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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 holy writ.
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 simply 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. Legal positivism is untenable and so is deconstructionism. Legal positivism would have us deny that law has any transcendent value. That means that actions such as murder or rape aren't really wrong; they're only wrong because we say they are. As for deconstructionism, it also falls stillborn from the lips of the professors that proclaim it. Deconstructionists would have us believe 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 Ginsberg 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 judges if the judges, like the rest of us, are to be under the law.
Do we still have a Constitution? Yes. Does it still work? Absolutely. But unfortunately it suffers in the hands of judges and politicians who manipulate it to serve their political ends. 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 really is and what ends it’s supposed to serve, we can better recognize when our officials are circumventing it, and 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).