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

By Big Tent Democrat, Section Constitution
Posted on Fri Jun 04, 2010 at 10:30:22 AM EST
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[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