We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.

Charles Evans Hughes made this remark while serving as Governor of New York, in a speech addressing the role of courts in American constitutional government. The line reflects early-20th-century debates over judicial review and the power of courts to invalidate legislation—controversies sharpened by Progressive Era reforms and frequent litigation over regulation of business, labor, and property. Hughes, a lawyer and reform-minded politician who later became Chief Justice of the United States, emphasized that constitutional guarantees are realized in practice through judicial interpretation. The statement is often cited to illustrate the practical authority of the judiciary in defining constitutional meaning.

The quote underscores a realist point about constitutional law: written provisions do not enforce themselves; their operative meaning depends on how judges interpret and apply them. Hughes is not necessarily claiming judges may invent the Constitution at will, but that constitutional limits and rights become concrete only through adjudication. By calling the judiciary a “safeguard,” he links judicial independence and review to the protection of liberty and property—an argument that courts are essential checks on transient political majorities. The line also invites criticism: if “the Constitution is what the judges say it is,” then democratic self-government can be constrained by unelected interpreters, making judicial philosophy and appointment politics pivotal.

“We are under a Constitution, but the Constitution is what the judges say it is.”