Author: Timothy Sandefur
A common saying among lawyers is that the Constitution is whatever five justices say it is. Indeed, according to certain “realists,” the Constitution actually has no meaning until it is interpreted by the Supreme Court. There is no “fact of the matter” about the Constitution’s meaning, independent of judicial interpretation.
I think there are fatal problems with such an argument. For one thing, if this is correct, then it is logically meaningless to say that the Supreme Court was “wrong” about what the Constitution says. If the Supreme Court were to say that a person can be president at the age of 25, then that is correct—it is as true as anything can be—and the fact that the words on the actual page of the Constitution say 35 instead, is irrelevant. Thus it is literally impossible for a majority of the Supreme Court to be wrong about what the Constitution means, at the time that they issue a decision. Later on, the Court might change its mind, but at the time that it issues a decision, the majority must, as a matter of logic, be correct, under this theory. So Plessy v. Ferguson was correct, and Dred Scott was correct, when these decisions were issued.
But in Lawrence v. Texas, we find the following sentence: “Bowers [v. Hardwick] was not correct when it was decided, is not correct today, and is hereby overruled.” But it is not possible for Bowers to have been wrong when it was decided, since it was the decision of a Supreme Court majority, and therefore was all that the Constitution could mean. So the Lawrence majority must be wrong when it says that Bowers was “not correct when it was decided.” And yet the Lawrence decision is a decision of the majority and therefore cannot be wrong about the fact that Bowers was wrong. This is just the classic Cretan Paradox—it is not logically possible for both Lawrence and Bowers to be right, and yet both must be right if, in fact, the Constitution means only what the judges say it means. The Supreme Court itself admits that it is capable of being wrong about what the Constitution means; so even those who think the Constitution means only what the Supreme Court says it means must concede the point that, according to the Supreme Court majority, the Constitution has a meaning other than what the Supreme Court majority says.
Let’s go farther. If the Constitution only means what the judges say it means because it’s a written document and must be given life by the Court’s interpretation, then why is the same not true of Supreme Court decisions themselves? They, too, are just words on a page, and can have no meaning until the lower courts implement that decision…and, again, the lower courts cannot be wrong about their implementation of the decision, since a written court decision means only what the reader says it means. So if the Supreme Court says “segregation is unconstitutional,” that decision means only what lower courts say it means, and if lower courts interpret that as meaning “segregation is just fine,” then the lower courts must be right, because the text means only what the reader says it means.
You might push this even more. If there is no fact of the matter until a court pronounces on it, then a murderer cannot be guilty or not guilty until a jury decides on guilt or innocence—and the jury cannot be wrong, because there is no fact of the matter. On this premise—that the law is only what the judicial agent says it is—it is not logically possible for there to be a wrongful conviction or a wrongful acquittal. This argument might be a little weaker, since the “realist” only claims that there’s no meaning to a written text prior to interpretation, not no meaning to physical reality. But the concept of “guilt” is attributed—it doesn’t exist in nature. And one could just as easily change the hypothetical to say that in a contract case, a contract means nothing until the jury decides whether the defendant breached the contract or not….
I think these objections are convincing. It can’t be the case that the written constitution means nothing until the judges tell us its meaning. On the contrary, wherever the meaning of a text comes from, it doesn’t come solely from the reader. The logic of writing itself inescapably implies that it is possible to read that text correctly or incorrectly. And if that is the case, then there must be a “fact of the matter” about what the Constitution means, other than what the Supreme Court says it means.