Legal Commentary

Uncertainty in Life And The Constitution: Justice Souter's Harvard Commencement Address

By Big Tent Democrat

[T]he future of the Constitution as the Framers wrote it can be staked only upon [. . .] trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people. -- retired Justice David Souter, 2010 Harvard Commencement Address

As a longtime proponent of the view that the Constitution was ORIGINALLY intended to be a "living" document (see for example, this and this), it was with great interest that I read about retired Justice David Souter's Harvard commencement address on constitutional interpretation. E.J. Dionne finds the political strong point for the views he, Souter and I appear to share regarding constitutional interpretation - comparing Plessy and Brown:

Souter attacked the fatal flaw of originalism — which he relabeled the “fair reading model” — by suggesting that it would have led the Supreme Court in 1954 not to its Brown v. Board of Education decision overturning legal segregation but to an affirmation of the 1896 Plessy v. Ferguson ruling upholding “separate but equal” public facilities.

[. . .] Brown must either be flat-out wrong or a very mystifying decision [to originalists],” Souter said. “The language of the Constitution's guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be very hard to say that the obvious facts on which Plessy was based had changed,” Souter argued. “Actually, the best clue to the difference between the cases is the dates they were decided, which I think lead to the explanation for their divergent results.”

It is a strong political point. But Souter's argument is more intellectually rigorous than that. To me this is the finest excerpt from the speech:

Even the First Amendment, then, expressing the value of speech and publication in the terms of a right as paramount as any fundamental right can be, does not quite get to the point of an absolute guarantee. It fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish, the value of security for the nation and the value of the president’s authority in matters foreign and military. The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises.

"The Constitution must be read as a whole." That is a phrase I love because for many years I have argued with persons, both to the Left and to the Right of me that merely looking at, say the Tenth Amendment, will answer Tenth Amendment questions. Indeed, this conception best describes why the Supreme Court is clearly a political institution and should be understood as such.

Justice Souter concludes with a flourish:

[B]ehind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.

But I have come to understand that he was right, and by the same token I understand that I differ from the critics I’ve described not merely in seeing the patent wisdom of the Brown decision, or in espousing the rule excluding unlawfully seized evidence, or in understanding the scope of habeas corpus. Where I suspect we differ most fundamentally is in my belief that in an indeterminate world I cannot control, it is still possible to live fully in the trust that a way will be found leading through the uncertain future. And to me, the future of the Constitution as the Framers wrote it can be staked only upon that same trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.

(Emphasis supplied.) I have never read so eloquent a defense of the idea that the Living Constitution is in fact the Framers' vision. We are the Otiginalists, is Souter's cry. And a great one.

Speaking for me only

Full post as published by TalkLeft on June 04, 2010 (boomark / email).