Judges on Judging: Views from the Bench

By David M. O'Brien | Go to book overview

PART III
The Judiciary and the Constitution

"WE ARE under a Constitution," Chief Justice Charles Evans Hughes declared, "but the Constitution is what the judges say it is."1 The traditionally held view, in Chief Justice John Marshall's words, is that "[c]ourts are the mere instruments of law, and can will nothing." 2 Chief Justice Roger Taney similarly held that the Constitution "speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers. . . . Any other rule of construction would abrogate the judicial character of this Court, and make it the mere reflex of popular opinion or passion of the day." 3

The power to declare the law, however, Justice Benjamin Cardozo maintained, "carries with it the power, within limits the duty, to make law when none exists." 4 Not all provisions of the Constitution are unambiguous. Interpretation is necessary because the nature of the Constitution, Chief Justice Marshall noted, "requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves." 5 In constitutional interpretation the intent of the founding fathers provides a guide, but it is often difficult if not impossible to determine the extent of agreement among those who drafted and those who ratified the document in the various state constitutional conventions. Changing political circumstances, furthermore, present new problems that require judicial creativity in constitutional interpretation. Chief Justice William Howard Taft, for one, considered this the Court's "highest and most useful function." That "judges should interpret the exact intention of those who established the Constitution," he said, was a "theory of one who does not understand the proper administration of justice." Frequently, he continued, "new conditions arise

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