For years, Supreme Court justices, lower court judges and law professors have argued over the merits of Scalia’s approach to constitutional interpretation. Yet last weekend in a commencement speech at Harvard, retired Justice David Souter offered a powerful counterpoint to “originalism” that might eclipse those arguments by virtue of the setting and timing.
“Even a moment’s thought is good enough to show why it is so unrealistic,” Souter said in his dry, direct manner. “The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. … But this explanation hardly scratches the surface.”
Speaking before thousands of graduates under a blue sky, he added that, “The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony.”
It is precisely that tension that brings cases to the marble steps of the nation’s highest court. Scalia has always professed that his approach — tied to the 18th Century understanding of the text — is straightforward, even easy, because the answers are right there and judges’ values need not enter the mix.
Souter dismissed that out of hand and concluded: “The fair reading model fails to account for what the Constitution actually says, and it 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. …. Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.”
Now, debate over originalism is hardly new. Justice Breyer wrote a whole book, Active Liberty (2005), countering Scalia. And two years ago, in a case testing whether the Second Amendment holds an individual right to bear firearms, District of Columbia v. Heller, originalism was the backdrop. Scalia prevailed with his reading for an individual right to handguns. In dissenting opinions, both Justice Breyer and Justice Stevens (from different angles) wrote at length against Scalia’s interpretation. Justice Souter, who was still on the Court then, dissented but did not write separately.
Yet now, retired and shed of his robe and the yoke of a particular case, Souter in a single speech may be more effective against Scalia’s originalism.
Washington Post columnist E.J. Dionne, who wrote admiringly of Souter’s Harvard speech, says it has received far too little attention. But I would bet that changes.
Souter’s timing seems just right. We are entering a confirmation season (Elena Kagan’s Senate Judiciary Committee hearings begin on June 28), and large constitutional questions will be in the air. We are also nearing the end of another Court term. Among the many awaited cases is one (McDonald v. City of Chicago) requiring further interpretation of the Second Amendment.
Souter’s sharp words, delivered while wearing a cap and gown, rather than a black robe, are likely to reverberate louder.