Excerpt from Professor Wagner's Federalist Society Keynote at Wayne State University
The Rule of Law.
The phrase is familiar. Its meaning is revolutionary.
The Rule of Law does not mean that society has laws. Every tyranny has laws.
The Rule of Law means that those who exercise power remain subject to law.
Under the Rule of Law, the central question for a public official is not what result do I desire?
It is what authority has lawfully been entrusted to me? That question has guided much of my own thinking about constitutional interpretation. I believe deeply in an independent judiciary. My Judicial experience strengthened rather than weakened my conviction that judicial power must remain judicial.
A judge's oath is not a commission to improve the Constitution. It is a duty faithfully to interpret it.
Because we are gathered at a law school, let me address a question especially important to those entering the legal profession.
How do we determine what the Constitution actually means?
Is constitutional meaning something judges discover—or something judges create? When the American people adopted a written Constitution, its words communicated meaning. They were understood within a historical setting, a legal tradition, and a framework of governmental institutions. To interpret that instrument faithfully, we must seek the meaning its language conveyed when it became law. That inquiry requires attention to the text, its original public meaning, legal usage, constitutional structure, and relevant history.
History is not an obstacle to constitutional interpretation. Properly understood, history is evidence.
· Evidence of what the people enacted.
· Evidence of how legal language was understood.
· Evidence of the legal institutions, governmental practices, and constitutional traditions that shaped the Founders’ understanding of the powers they granted and the liberties they protected.
Consider the First Amendment.
· What did the constitutional generation understand by the free exercise of religion?
· What abuses did Americans seek to prevent?
· What did the traditions of conscience and disestablishment contribute to that protection?
History and tradition do not replace constitutional text. They help us understand meaning and apply it.
Nor is every historical practice constitutional—or just.
· Slavery reminds us that a society can tolerate practices profoundly at odds with its professed moral principles.
· And the Reconstruction Amendments must be understood according to their own text and historical setting, not frozen in the assumptions of 1787.
Here is a distinction I especially want law students to remember.
Objective moral truth and objective constitutional meaning are related inquiries. But they are not identical inquiries. I believe objective moral truth exists independently of human preference and political power -- And, Natural law supplies a moral framework for evaluating justice, dignity, and legitimate government.
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A judge may believe a policy is morally wise. That belief does not give the judge constitutional authority to impose it... Judges have a different responsibility -- to decide cases according to what the law actually says. To be sure, historical evidence can be incomplete and contested. Reasonable interpreters may disagree about its weight. But difficulty in discovering meaning does not establish that meaning is whatever we wish it to be.
The existence of disagreement about truth does not mean truth does not exist. And disagreement about constitutional meaning does not authorize judges to manufacture it. Judicial independence is indispensable. But judicial independence does not confer supremacy over the Constitution itself, nor does it authorize judges to usurp the constitutional powers entrusted to Congress or the Executive.
A judge's oath requires fidelity to the Constitution—not to the judge's preferred vision of society. That is the difference between the Rule of Law and the rule of those temporarily entrusted with interpreting it.
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