Keeping "promises the Nation has made"

The Honorable David H. Souter

The guest speaker for the afternoon exercises, the Honorable David H. Souter, retired associate justice of the Supreme Court, used the occasion--an interested audience; the nearing end of the court’s term and its annual flurry of opinions; the pending hearings on the nomination of Elena Kagan, Law School dean emerita, as the successor to Justice John Paul Stevens; and his own recent freedom from the constraints of office--to lead a conversation about constitutional interpretation.

Souter challenged the notion that judges were charged simply with the task of applying a “fair reading” of the Constitution and of the facts of any given case to arrive at a decision (the argument often called “originalism” or “strict constructionism,” as opposed to presumed “judicial activism”). In the Pentagon Papers case, he said, the plain language of the First Amendment (Congress shall “make no law” limiting speech) conflicted with constitutional mandates to secure the country--and although publication was not further enjoined, the principles of vigorous action to protect the nation were reinforced. Similarly, he said, the facts in Plessy v. Ferguson (1896) and in Brown v. Board of Education, six decades later, were not so dissimilar (the one involving passenger railroad cars, the other schools). But in the first case, “separate but equal” facilities were upheld, as a vast improvement compared to the horrors of slavery, still in recent memory; in the second, they were ruled illegal, in light of the newer fact of constitutionally repugnant, manifestly unequal segregation.

Souter concluded by applying his argument to the broader task of reconciling an untidy world with human longings through reason.

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. Not even its most uncompromising and unconditional language can resolve the potential tension of one provision with another, tension the Constitution’s Framers left to be resolved another day; and another day after that, for our cases can give no answers that fit all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world. These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments.

The fair reading model has all that to answer for, but more than just that. 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 may be found to resolve it when a conflict arises. That is why the simplistic view of the Constitution 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.

 So, it is tempting to dismiss the critical rhetoric of law making and activism as simply a rejection of at least some of the hopes we profess to share as the American people. But there is one thing more. I have to believe that something deeper is involved, and that behind most dreams of a simpler Constitution 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, if not 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 which heartily resisted the pronouncement of Justice Holmes, which I read as an undergraduate, 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 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 that respects the words the Framers wrote, by facing facts, and by seeking to understand their meaning for the living.

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.

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