The Constitution, the Supreme Court, and Judicial Review
THE CONSTITUTION OF 1787 and its twenty-two amendments can be read in about half an hour. One could memorize the written document word for word, as many school children did a generation ago, and still know little or nothing of its meaning or implications. The reason is that the formal body of rules known as constitutional law consists primarily of decisions and opinions of the United States Supreme Court -- that is, of the gloss or veneer that the Justices have spread on the formal document.
We must not forget, says the historian Charles Warren, that "However the Court may interpret the provisions of the Constitution, it is still the Constitution which is law and not the decisions of the Court"; the Constitution itself, as Justice Frankfurter reminds us, is the "ultimate touchstone of constitutionality." Against all such reminders, however, stands Charles Evans Hughes' blunt assertion, "The Constitution is what the Judges say it is."
"What is the Constitution?" Justice Paterson inquired in a Supreme Court opinion of 1795. "It is the form of government," he answered, "delineated by the mighty hand of the people, in which certain first principles of fundamental law are established."
The Constitution, the Justice went on, "is the work or will of the people themselves, in their original sovereign and unlimited capacity. . . . The Constitution fixes the limits to the exercise of legislative authority and prescribes the orbit within which it must move. In short . . . the Constitution is the sun of the political system, around which all legislative, executive, and judicial bodies must revolve. . . ." As to all agencies of government, the Constitution stands in the relationship of creator to creatures. "The theory of our governments, state and national," Justice Miller commented in 1875, "is opposed to the deposit of unlimited power