Souter vs. originalism

Former Supreme Court Justice David H. Souter addressed Harvard University's commencement ceremonies on 27 May 2010. His remarks critiqued the philosophies of Constitutional interpretation known as strict constructionism and originalism. Strict constructionism is the practice of interpreting the "plain text" of the Constitution and its amendments, while originalism is the practice of interpreting the Constitution and its amendments according to how they were understood at the time they went into effect. An originalist would look at the First Amendment in the light of how an eighteenth-century gentleman farmer would have interpreted it, while analyzing the Twenty-First Amendment in light of how an adult of the early twentieth century would have understood it.

Strict constructionism, concentrating as it does on the plain text of the Constitution and its amendments, has an easily-understood appeal. In particular, if I may be so bold as to impute personality traits to political views, I can see its appeal to conservatives. Strict constructionism offers a straightforward approach to Constitutional interpretation that, ideally, eliminates the need or the ability for judges to adopt a moral stance. All moral decisions are the province of the people and are only to be expressed through legislation and Constitutional amendment. Strict constructionism thus promises slow social change, and only at the behest of a majority of the population.

There is a whiff of the mathematical about srict constructionism's promise: adopt this philosophy and decisions become a matter of plugging the facts into judicial equations, its advocates insinuate. Or perhaps more accurately, they imply that strict constructionism eliminates the messiness of acknowledging contemporary mores, the perilousness of coming to a conclusion about how society thinks or feels right now.

Justice Souter claims that the Constitution does not permit such evasiveness. He illustrates his point with the dispute surrounding the publication of the "Pentagon Papers." Most of us know why the Court allowed the documents to be published: the First Amendment's right to free expression and publication was deemed to override the government's need to keep the documents secret. Yet that need also arose from a Constitutional prerogative: "The Constitution also granted authority to the government to provide for the security of the nation, and authority to the president to manage foreign policy and command the military." If the circumstances had been different, the Court might have ruled differently.

The court’s majority decided only that the government had not met a high burden of showing facts that could justify a prior restraint, and particular members of the court spoke of examples that might have turned the case around, to go the other way. Threatened publication of something like the D-Day invasion plans could have been enjoined; Justice Brennan mentioned a publication that would risk a nuclear holocaust in peacetime.

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.

Conservatives have used the expression "judicial activism" as a pejorative shorthand for decisions that they claim violate the principle of strict construction by too-expansive interpretation of the Constitution. Souter briskly disposes of the notion of activism:

A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways....

Let me ask a rhetorical question. 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? You know my answer. So much for the notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly.

I wrote briefly about originalism a couple of months ago. Justice Antonin Scalia is good at making his views look unassailable, and I found myself thinking that originalism might make sense as a judicial philosophy, even if it was still weird as a practice (not many professions today look backwards to see how they were carried out two hundred years ago). It helped that the only critique of originalism I had been able to find, from former Justice John Paul Stevens, managed to miss the point of originalism altogether.

Souter baldly takes issue with the heart of originalism, the idea that the views people held in the past about the Constitution ought to govern our interpretation of it today. As his exemplar he looks at Plessy v. Ferguson, which enshrined "separate but equal," and Brown v. Board of Education, which essentially dismantled it. What caused this reversal?

[T]he members of the Court in Plessy remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see. That meaning is not captured by descriptions of physically identical schools or physically identical railroad cars. The meaning of facts arises elsewhere, and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own.

This is a direct repudiation of originalism's essence, and the best argument I've seen so far in favor of taking contemporary values and cultural mores into account.

That said, I can imagine Scalia's counterargument: "How can it possibly be appropriate for nine men and women to impose their moral compasses on the entire country? Show me where in the Constitution or its amendments that the Court is granted the authority to judge what is morally acceptable. Tell me why that would be a good thing. You can't." (I imagine Scalia would be combative on this point.)

And I'm not so sure Scalia would be wrong.

Even if you like the outcome, as most of us do in the case of Brown, never forget that the Court operates on precedent, not only in the sense of deciding new cases on the basis of old ones, but also in the sense of operating according to the behavioral norms established by previous Courts. If a prior Court -- for instance, the Warren Court -- had made moral justice an accepted component of its jurisprudence, the current Court would have ample excuse to do so as well. And I don't know that I want the current Court to make value judgments about abortion, or gay marriage, or any number of other issues on which its collective moral compass almost certainly points south whenever mine points north. (Unfortunately, the horse is already out of the barn on this point.)

I still find originalism to be a troubling philosophy, one that permits bad ideas and old prejudices to endure longer than they should. However, Justice Souter was only a little more effective than Justice Stevens in arguing against it. I really hope that somebody will show me a good reason, or even better, a number of good reasons not to consider it the least bad guide to interpreting the Constitution.