Re: Chief Justice Hughes

[Richard D. Friedman]

Yes, the line was uttered as part of a speech in the midst of Hughes's first great campaign as governor of New York, in 1907, for a strong Public Service Commission.  He was arguing that the PSC should not be subjected to close judicial review.  The famous passage ", and the judiciary is the safeguard of our liberty and of our property under the Constitution."  He goes on to say that it would be bad for the courts to expose them to the burdens of questions of administration, which ought to be left to a specialized commission.

There are defensive discussions of the speech in Merlo Pusey's biography of Hughes, vol. 1, pp. 204-05, and also in Hughes' Autobiographical Notes.

There's some irony here, in that as Chief Justice a quarter century later Hughes was rather active in seeking judicial control over administration.  And his view of administration always adhered rather closely to a judicial model -- thus his pronouncement in the Morgan litigation that the one who decides must hear.

Rich Friedman

At 12:23 PM 7/8/2003 -0400, you wrote:

I m interested in the famous quotation of Chief Justice Hughes  - that We are under a Constitution, but the Constitution is what the judges say it is... . I ve read the speech in which he made the remark, and it seems almost a throwaway line in the context of an argument for development of the administrative state.

Can anyone on the list fill me in on Hughes remark and its significance? Off list replies would be appreciated.

Thanks,

Grant
[EMAIL PROTECTED]



Grant Huscroft
Faculty of Law
University of Western Ontario