Religion & Public Life With Mark Silk

Religion & Public Life With Mark Silk


Souter’s Constitutional Spirituality

posted by Mark Silk

souter_harvard_commencement_2010.JPGThere’s a spiritual dimension to last week’s commencement speech at Harvard by retired Supreme Court Justice David Souter. As celebrated by the liberal likes of E.J. Dionne and Linda Greenhouse, the speech constituted a sharp critique of the originalism of Antonin Scalia et al. Souter rejects what he calls their “fair reading” approach, in which constitutional judging is imagined to be a straightforward process of looking at the text as the Founders are presumed to have intended it and applying that to the facts of the case. “The Constitution,” said Souter, “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.”

Behind the originalists’ “simplistic” critique, Souter continues (in a sympathetic mode), “there 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?” But it is important, he suggests, to put away such childish things.

Where I suspect we differ most fundamentally is in my belief that in
an indeterminate world I cannot control, it is still 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,
by respecting all the words the Framers wrote, by facing facts, and by
seeking to understand their meaning for living people.

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.

From a gentle man, these are very tough words. In Souter’s view, Scalia et al. suffer from a failure of nerve. They cannot abide an indeterminate world that cannot be controlled, and so look for simple rules to control it. They do not trust that a way can be found to resolve the uncertainties the Framers saw–one that addresses the facts and meanings of the present time. They do not make good on our
aspirations as a people.



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JTA

posted June 4, 2010 at 8:43 pm


Pure garbage, Mr. Silk.
I suppose the “fact” that we have to accept is that the world has gone to hell already and there is nothing that can be done about it. Abortion is a fact, get over it, right ? Exactly what “faith” do you espouse ?



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Tito Edwards

posted June 4, 2010 at 11:43 pm


Is this supposed to be a ‘religious/spiritual’ website?
This is garbage.



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Your Name

posted June 5, 2010 at 12:50 am


Yeah exactly how is this religious?
instead of the silly comment about simple rules…maybe scalia trusts in the people through the legislative branch to address problems in this indeterminate world whereas souter…only trusts souter.
kind of brave of souter to clearly state his judicial philosophy only after leaving the court. i guess he didn’t want scalia to poke wholes it. yet again…the more liberal the politics, the less liberal the sentiments.



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Rex Styzens

posted June 7, 2010 at 1:27 am


The three comments posted so far bewilder me. I find Souter’s critique of absolutism, especially when that is applied to democratic principles, in accord with what I understand of truth today and coherent with the statement, “We find these truths to be self-evident, etc.”
In what do liberal Christians have faith? In lots of things, but one primary example is our faith in truth. If you ask me what is THE truth, my answer is that I do not know, because all I can know are individual truths. Those come to us via philosophy, and the difference between individual truths and the whole truth marks the distinction between philosophy and religion.
The point is that life gets its meaning when we have faith that truth, in the end, will win. Emerson wrote, “Patience, patience, we will win in the end.” His faith in compensation means that he believes in the end truth wins. Maybe not in this particular struggle, but in the end. What does “in the end” mean? It means that if we believe in truth and live our life now with the faith that truth will win in the end, life has meaning for us, in the world historical sense. What we live for now will eventually win.
How can we know a “whole” truth? Well, we cannot “know” it, because to know something requires that we be able to observe it, which means to stand outside it, in a public realm, where what we say about it can be measured by propositions subject to falsification, where we know what it means to find them true or find them false.
We can only know the whole truth by analogy, rather than by verification. For we, too, are, each of us, a whole. So we know what “whole” means. As a layman’s guide for what it means to be a whole, take the simple fact that if we are sufficiently broken into separate pieces, we die. Of course, that is a matter of degree. We can have pieces torn from us that merely injure us. But if we are thoroughly broken, we no longer exist. That is the primary characteristic of a whole.
Our human realm in the universe is to be the one place where it all, the whole, comes together. We have the ability to appreciate the whole of things. I do not know why or if there is a reason why our universe needs a location where it all comes together, but I know there is such a place, and that is who we are.
I can understand that in the absence of orthodox religious jargon, this may not seem religious. Let me assure you that it governs worship and life for many of us.



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