Civitas No. 3
On Interpretation, and the Quiet Substitution of Judgment for Law
To The People of the United States:
No free government can endure unless the meaning of its laws remains more stable than the preferences of those charged with applying them. This truth, though simple, is easily obscured when interpretation is mistaken for authority, and judgment for law itself. The danger does not announce itself in moments of crisis; it advances gradually, under the cover of necessity and good intention.
Interpretation was never meant to be an instrument of revision. Its proper office is to apply the law as written to the cases that arise under it, not to improve upon it, correct it, or adapt it to contemporary sensibilities. Where interpretation strays beyond application, it ceases to be a judicial function and becomes a legislative one, however carefully disguised.
The Constitution anticipated the need for change. It did not deny that circumstances would evolve or that judgments made in one era might be questioned in another. But it provided a mechanism for such change that was deliberate, demanding, and public: amendment. This process was not designed for convenience. Its difficulty was the safeguard. It ensured that alterations to the fundamental law would occur only when supported by sustained and broad consent.
When courts assume the role of updater, this safeguard is quietly set aside. Change still occurs, but without the discipline of consensus or the transparency of formal revision. What cannot be achieved through amendment is accomplished through construction; what lacks popular assent is supplied by interpretation. In this way, constitutional meaning shifts without The People ever being asked whether they agree.
This substitution carries a cost that is often overlooked. Law derives its legitimacy not merely from outcomes, but from process. A rule adopted through consent binds even those who disagree, because they recognize the authority by which it was made. A rule announced through interpretation binds only so long as it is tolerated. When courts revise the Constitution in substance while leaving its text intact, they weaken the foundation upon which obedience rests.
The problem is not confined to any single doctrine or decision. It lies in the habit of treating constitutional language as an invitation rather than a constraint. Vague phrases are expanded beyond their historical meaning; clear limits are softened into standards; prohibitions are recast as balancing tests. The Constitution remains, but its character changes. It becomes less a rule of law than a framework for judicial discretion.
This development is often defended as necessary to keep the Constitution “alive.” Yet a document whose meaning changes without amendment does not live; it drifts. Its authority comes not from the consent of the governed, but from the confidence of the interpreters. Such a system may be efficient, and it may even produce outcomes many regard as desirable, but it is not self-government in the constitutional sense.
A people who accept this arrangement may enjoy stability for a time, but they surrender something essential. When meaning is untethered from text and consent, disagreement loses its lawful outlet. Those who dissent are told not that they must persuade their fellow citizens, but that the matter has already been decided -- by judges rather than by The People themselves.
This is not a call to deny the judiciary its proper role. Courts are indispensable to the rule of law. They resolve disputes, enforce limits, and protect rights. But they do so legitimately only when they remain within their assigned function. A judiciary that governs by interpretation does not strengthen the Constitution; it replaces it.
Constitutional meaning cannot survive where it is free to float from one generation to the next without deliberate renewal. If the law is to command respect, it must be knowable, stable, and alterable only by those in whose name it speaks. Where amendment yields to interpretation as the primary engine of change, legitimacy thins, and law becomes policy by another name.
The preservation of self-government requires a renewed distinction between judging and making law. Without it, the Constitution remains in form but fades in substance, and The People are left governed by decisions they did not authorize and cannot readily reverse.
Civitas Americana