A Quote by Charles Evans Hughes
The Constitution is what the judges say it is.
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It is the people, and not the judges, who are entitled to say what their constitution means, for the constitution is theirs, it belongs to them and not to their servants in office—any other theory is incompatible with the foundation principles of our government.
We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution.
The Constitution is what the judges say it is, every time.
The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges views of fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation.
I used to say that the Constitution is not a living document. It's dead, dead, dead. But I've gotten better. I no longer say that. The truth is that the Constitution is not one that morphs. It's an enduring Constitution, not a changing Constitution. That is what I've meant when I've said that the Constitution is dead.
As long as judges tinker with the Constitution to 'do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.
Constitutions are violated, and it would be absurd to expect the federal government to enforce the Constitution against itself. If the very federal judges the Constitution was partly intended to restrain were the ones exclusively charged with enforcing it, then "America possesses only the effigy of a Constitution." The states, the very constituents of the Union, had to do the enforcing.
The Constitution empowers the people to resolve our day's most contentious issues. When judges forget this basic truth, they do a disservice to our democracy and to our constitution.
What the framers of the Constitution tried to achieve when they wrote that Constitution back in the 1700s was an independent federal judiciary. They wanted federal judges to be appointed by the president, with the advice and consent of the Senate, and to serve for good behavior.
Conservatives like to insist that their judges are strict constructionists, giving the Constitution and statutes their precise meaning and no more, while judges like Ms. Sotomayor are activists. But there is no magic right way to interpret terms like 'free speech' or 'due process' - or potato chip.
Conservatives . . . may decide to join the game and seek activist judges with conservative views. Should that come to pass, those who have tempted the courts to political judging will have gained nothing for themselves but will have destroyed a great and essential institution. . . . There are only two sides. Either the Constitution and statutes are law, which means their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win.
The Declaration of Independence...is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.
I feel that the constitution is workable, it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.
While the Constitution is what the judges say it is, a public issue is something that Walter Cronkite or John Chancellor recognizes as such. The media by themselves do not make the decisions, but on behalf of themselves and larger interests they certify what is or is not on the nation's agenda.
No doubt, there are those who believe that judges - and particularly dissenting judges - write to hear themselves say, as it were, 'I, I, I.' And no doubt, there are also those who believe that judges are, like Joan Didion, primarily engaged in the writing of fiction. I cannot agree with either of those propositions.
Judges are either partial to the Constitution or they aren't; they either believe that the document is perfect in its form and that rights like free speech don't ebb in and out of style - or they believe that it's an anachronistic document in a world that needs a malleable, living Constitution.
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