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

[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

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    Thanks for posting this thought-provoking (5.00 / 3) (#8)
    by oculus on Fri Jun 04, 2010 at 11:57:01 AM EST
    speech.  Hope the graduates listened.

    By calling it the "fair reading model" (5.00 / 1) (#9)
    by Maryb2004 on Fri Jun 04, 2010 at 01:24:28 PM EST
    he not only starts a substantive legal debate with originalists but uses layman's language as a rebuttal to Roberts' layman term: "balls and strikes".  That is very useful and it is nice he did it right before a series of confirmation hearings.  Well done.

    It weas a wonderful speech (5.00 / 1) (#11)
    by Big Tent Democrat on Fri Jun 04, 2010 at 01:54:35 PM EST
    It conveyed this idea:

    "I believe that the proper function of Constitutional interpretation does not entail reading the Constitution as one reads a statute - it requires more than a formalized reading of the text and search for specific findings of the original understanding of the specific text in question and the applicability to the case at hand. It requires a unifying approach, one that seeks to read the Constitution as a whole, harmonizing the component parts of the Constitution, the empowering provisions, the limiting provisions, the individual rights created and preserved. It requires understanding the purpose of the creation of a third coequal branch, the judicial branch, with the attendant common law judicial powers and restraints." (my words)

    in a much more thoughtful and effective presentation.

    Parent

    It's a fabulous speech (none / 0) (#1)
    by jbindc on Fri Jun 04, 2010 at 10:37:17 AM EST
    The fair reading model misses that, but it has even more to answer for.  Remember that the tensions that are the stuff of judging in so many hard constitutional cases are, after all, the creatures of our aspirations:  to value liberty, as well as order, and fairness and equality, as well as liberty.  And the very opportunity for conflict between one high value and another reflects our confidence that a way may be found to resolve it when a conflict arises.  That is why the simplistic view of the Constitution devalues our aspirations, and attacks that our confidence, and diminishes us.  It is a view of judging that means to discourage our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the nation has made.

    Beautiful.

    I've said this before (none / 0) (#4)
    by Big Tent Democrat on Fri Jun 04, 2010 at 10:49:46 AM EST
    I think Souter was the best Justice of the past 20 years

    Parent
    It really clicked for me (none / 0) (#5)
    by jbindc on Fri Jun 04, 2010 at 10:58:49 AM EST
    The tensions between the originalists and everyone else living in the real world - all from reading this speech.  It's almost like "duh".

    Looks like this is a once a year topic!

    Parent

    I'm sure the originalists are not in the least (5.00 / 1) (#6)
    by observed on Fri Jun 04, 2010 at 11:06:45 AM EST
    honest. They have hung their hat on originalism to suit their ends---because it sounds nice to say you respect the original intent of the Founders.

    Parent
    Should I be worried about you (none / 0) (#2)
    by me only on Fri Jun 04, 2010 at 10:38:32 AM EST
    Otinginalists?  Are you also motengators?

    So now the cry is to co-opt the name of the opposition.  Rather Lame.

    I think the better part of his speech is the other portion you highlighted:

    by facing facts, and by seeking to understand their meaning for living people.

    'Cause whether or not Plessy was strictly constitutional, in application it was awful.  That is Souter's argument.  And it is a good one.

    What a lame response (5.00 / 1) (#3)
    by Big Tent Democrat on Fri Jun 04, 2010 at 10:49:04 AM EST
    We are discussing what the original view of the Framers was.

    The lame tactic was to adopt the name "originalists" as if they knew the original intent.

    I like a good discussion on the issue.

    You are not providing it.

    Parent

    So far... (none / 0) (#7)
    by mike in dc on Fri Jun 04, 2010 at 11:29:16 AM EST
    ...the sound of crickets chirping has been the response from the originalists, from what I've seen.  

    It was a superlative dissection of the fundamental flaw with the "originalist" approach, imo.  What do you do when two(or more) sections of constitutional text conflict?  Even the "original intentions" and "original understanding" approaches may not hand you a neat solution.  You have to use general principles and ultimately, make a consensus, subjective decision as a court as to what outcome is best, and why.

    Easy (none / 0) (#12)
    by BTAL on Fri Jun 04, 2010 at 03:11:35 PM EST
    What do you do when two(or more) sections of constitutional text conflict?

    Defer to restricting the power and intrusion of the government.  

    Parent

    "repose is not our destiny." (none / 0) (#10)
    by vicndabx on Fri Jun 04, 2010 at 01:53:42 PM EST
    Nice.

    Nice also (5.00 / 1) (#14)
    by christinep on Fri Jun 04, 2010 at 03:51:03 PM EST
    "...certainty generally is illusion," and the robust trust that Souter places in the Constitution to be able to expand as necessary. And, it is humbling that this former Justice truly has so much respect for our humanity.  Souter's profound trust is that all will move forward in real accord with the long-ago intent of the Founders when we open our eyes and unchain our own control of it. Exceptional speech.

    On nominee Kagan: Speaking of trust...I hope that my trust in what appears to be a pragmatically liberal approach (as gleaned from reportage to date) tracks with the real life approach described by former Justice Souter <see, e.g., the societal growth over time to which he alluded in considering Plessy and the evolved reading in Brown.>

    Parent

    I really do like Souter (none / 0) (#13)
    by andgarden on Fri Jun 04, 2010 at 03:49:43 PM EST
    This is an excellent speech.

    He blew Twombly, though.

    I don't follow the SCOTUS closely enough (none / 0) (#16)
    by Raskolnikov on Fri Jun 04, 2010 at 07:10:17 PM EST
    After reading some on Wiki and some of Souter's assent, did this case basically make it harder to bring anti-trust cases against corporations by increasing the burden of proof?

    Parent
    No, not just antitrust (none / 0) (#17)
    by andgarden on Fri Jun 04, 2010 at 07:17:58 PM EST
    It basically overruled Conley v. Gibson. Though he would later claim that he wasn't trying to.

    Parent
    Yes...a brilliant speech. (none / 0) (#15)
    by oldpro on Fri Jun 04, 2010 at 03:59:20 PM EST
    For me, this was compelling:

    "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?"

    If the originalists were correct in their view, we woudn't have needed any ammendments to the Constitution, would we?