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Whispers in the Loggia
There’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.