The recent passing of Princeton Professor Harry Frankfurt has reminded us of what BS means—not caring about the truth. Sure, we realize that BS is part of life. We’re not surprised when used car dealers tell us it’s as good as new, or when politicians pander to voters, offering unfulfillable promises with their fingers crossed. We may be disappointed, but we understand that some professions can have a “convenient” relationship with the concept of true-and-false.

But we should expect better from judges. Trials are exercises in fact-finding. Witnesses are sworn to tell the truth and can suffer severe penalties if they don’t. We expect judges and juries to decide what is true and apply the law in a fair and impartial manner. Most of all, we need to have confidence that our highest court is doing the same.

Is that always the case? Whenever there is a controversial decision, we almost inevitably get an extensive majority opinion along with several concurring and dissenting opinions, each offering an argument for why the Constitution means one thing and not another. Sometimes a justice will explain what the text means or what the Framers intended, while others might disagree or cite the results of scientific or social scientific studies.

We need to ask, in memory of Professor Frankfurt, are we being BS-ed? In other words, are all of these judicial opinions true representations of the facts and the logic that led the justice to make that decision? Or are they just after-the-fact rationales for a preordained conclusion that have been ginned up in hopes that a gullible public will believe that this is really about law, when it is actually just politics? The problem is that we don’t always know.

In the Supreme Court’s famous Everson case, Justice Rutledge wrote a long opinion about Jefferson, Madison, and why the Framers built a First Amendment wall of separation between church and state. Then he sent a private note to a friend explaining that all the history was just a convenient story that he used so that he would not have to disclose his actual reasoning. His real concerns were the urgent need to keep Roman Catholicism from having influence in the schools, and if the Supreme Court didn’t act, these issues would be decided by legislatures that might take a different view.

In the same spirit, a number of prominent law professors have advanced a school of thought saying that the justices should essentially make political decisions but then write their opinions as if the Constitution’s meaning led straight to that conclusion—when it’s really the other way around. Get the policy outcome you want, but don’t tell anyone you’re just making it up. Sugarcoat the decision with legal-sounding language that will camouflage what is really happening.

As Chris Eisgruber has argued in Constitutional Self-Government, “When the judge’s decision flies in the face of national electoral majorities, the task of reconciling [the judge’s conception of] justice and … public opinion will be especially challenging.” Echoing Rutledge’s Founding Fathers strategy in Everson, he concludes, “By appealing to history, judges may attach a popular pedigree to unpopular decisions.” Mark Tushnet has outlined how his approach to judging would employ a similar after-the-fact method, which would involve deciding “which result is … likely to advance the cause of socialism,” and then penning an opinion based on “some currently favored version of [constitutional] Grand Theory.”

Some commentators call these post hoc interpretive rationales “covert consequentialism.” In other words, the ends justify the meanings. But that’s just BS. The Court shouldn’t spin a story about the Framers or grand theories or the scientific data or the social science statistics if the law is just whatever the justices say it is. We need them to be truthful rather than emulating that Everson opinion, which was nothing more than Wizard of Oz-ian flim-flam: “Pay no attention to that judge behind the curtain.”

An oft-cited law review article by Cass Sunstein is titled, “There is Nothing that Interpretation Just Is.” That’s only true if we assume that whatever judges do when they are talking about the Constitution is an act of interpretation. But since we know that a certain amount of covert consequentialism is going on, and that prominent legal scholars and teachers are encouraging it, we need to distinguish between whatever the Supreme Court says when it makes decisions and the formal act of constitutional interpretation.

Interpretation has had a well-known, stable meaning in Western legal history for over 1,000 years. It involves discerning and applying the intention of the lawmaker, as manifested in the language of the text, to the facts of the case at hand. To be sure, lawyers and judges can have good faith arguments over what the language means, what the lawmaker intended, and how to apply old laws to new circumstances.

Nevertheless, for the last millennium or so, the interpretive bottom line has always been that the policy decision is not made by judges, but by the lawmaker. If a majority of the Supreme Court thinks there should be a different outcome, they can write their elected representatives and suggest a constitutional amendment, just like any other group of concerned citizens.

So, what’s really going on is that, in some cases, the Court hasn’t really interpreted the Constitution; it has simply made federal common law. Like many courts throughout history, it has made decisions that didn’t derive from an act of interpretation as that word has been defined by the authors of the great legal commentaries, including Coke and Blackstone, Constitutional Framer and Justice James Wilson, Justice and Harvard Law Professor Joseph Story, and many others.

If those decisions are just common law decisions, then they do not represent what the Constitution means, and the Supreme Court is no longer the ultimate arbiter. They are just like any other common law decision—ordinary law that can be revised or replaced with other ordinary laws, such as statutes and other common law judicial decisions.

The inevitable result of getting rid of decisions based on constitutional BS will be that the responsibility for making laws about highly controversial issues of public policy will go back where it belongs—the lawmaking branches of government. Congress will need to do the hard work of making national policy, presidential candidates will have to run on issues more important than who they will appoint to the Supreme Court, and the Supreme Court will no longer be, with apologies to Hamilton, the most dangerous branch, capable of whipsawing the country back and forth with every shift in the makeup of a five-person majority.

Supreme Court justices have incredibly important work to do just in interpreting the laws and the Constitution. We need them to be focused on doing that essential task rather than asking (or allowing) them to make all the big national policy decisions as well. To do so, we should memorialize Professor Frankfurt’s memorably titled insights into the value of truth by getting rid of constitutional BS.

That BS eradication process needs to start in the law schools, where future judges learn (or at least should learn) that the notion of truth is a foundational component of the law. If law professors really want the Supreme Court to be what Brian Leiter has called a “super-legislature,” they need to tell the future justices in their classrooms why it is important to explain their real reasons for making a policy decision instead of dressing it up with after-the-fact constitutional BS. Such a decision will just be ordinary common law, not the supreme law of the land. But the more important value—the concept of truth—will be sustained.

The concept of truth is essential to the rule of law. Our courts demand it of us, and we should demand it of them.