Souter’s Commencement Speech

Ken AshfordConstitutionLeave a Comment

People are start to take note of the commencement speech given by former Supreme Court Justice David Souter to this year's graduating class of Harvard Law School. 

In it, Souter knocks  down the concept of "originalism" championed by Justice Scalia.  "Originalism", for the uninitiated, is the notion that the Constitution is a contract that must be interpreted only in light of what its original drafters wrote and are known to have meant at the time.  All a judge need do is employ a "fair reading" of the Constitution, and that is all.

Justice Souter's commencement speech, in his quiet way, made mincemeat of this:

"[T]he Constitution is no simple contract," the justice said, "not because it uses a certain amount of open-ended language, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, altogether, all at once." He then explained: "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."

"A choice may have to be made," the former justice continued, "not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways . . . Should the choice and its explanation be called illegitimate law making? Can it be an act beyond the judicial power when a choice must be made and the Constitution has not made it in advance in so many words? So much for the notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly."

Indeed, Justice Souter said, "The fair reading model fails to account for what the Constitution actually says and fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.

"For the tensions that are the stuff of judging in so many hard constitutional cases are, after all, the products 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 the good and the good reflects our confidence that a way must be found to resolve it when a conflict arises." Quite an uplifting sentiment, yes, from a man Washington's Establishment deemed perpetually "dour" because it could never quite figure him out?

"That is why," the Man from New Hampshire continued, "the simplistic view of the Constitution (the originalist/fair reading model) devalues those aspirations, and attacks that confidence and diminishes us. It is a model of judging that means to discourage our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the nation has made."

Put another way, Souter is saying that if all it takes is to give a fair reading to the Constitution and apply it to cases, then a monkey could do it.  But obviously, the kinds of cases that come before the Supreme Court are not that simple.

As examples, Souter raised two cases: The one involving The Pentagon Papers, and Brown vs. Board of Education.  In the first case, he noted, two constitutional values were in direct tension (freedom of the press vs. national security), and there was no obviously right answer. In the second, constitutional values had evolved to the point that "separate but equal" was no longer defensible, even if the plain language of the 14th Amendment guarantee of "equal protection" had not changed.

Conservatives raise the spector of "judicial activism" whenever judges interpret the Constitution in a way which gives an outcome that conservatives don't like.  They also deride the notion of a "living Constitution" — the idea that the Constitution changes as society changes.  On this latter point, Souter essentially says "Well, yeah!  Exactly!"  After all, in the real world, the protections of the 14th Amendment were not guaranteed under a "separate but equal" construct.  Only when "separate but equal" was abandoned in Brown did the 14th Amendment actually guarantee equal protection.  Justice Souter acknowledges that justices cannot be blind to real world results; whereas Scalia and Thomas insist that justices must be blind real world results.

In any event, Souter's commencement speech has hit a chord and is already being touted as an important contribution, along the line of Oliver Wendell Holmes' "Common Law", to the discourse about Constitutional interpretation.  "Justice Souter's extraordinarily candid and accessible remarks will be part of law school discussions and debates for years to come", as one scholar noted.

You can read the full text of the speech here.