Constitutional Law

Former Justice Souter speaks

Story here.

I can understand that he doesn't seem to like textualism -- stick to the words, that's what was agreed upon -- nor original understanding -- words explained by our best understanding of what they were meant to be. But what he does propose as an interpretative tool is beyond my grasp. Each rephrasing seems to amount to "something else."

"a defense of the need for judges to go beyond the plain text ? what he called the ?fair-reading model? ? and make choices among the competing values embedded in the Constitution. "

I can't see many areas where this is true, unless Article I's grant of power to Congress is seen as in conflict with the Bill of Rights ... but then the Bill of Rights reflects Americans' choice to withhold those powers from Congress, so it really is not in conflict. There's no indication to me that Americans meant for judges to consider "Congress shall make no law" as something for judges to weigh against Article I.

'The ?notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly? is not only ?simplistic,? he said; it ?diminishes us? by failing to acknowledge that the Constitution is not just a set of aphorisms for the country to live by but a ?pantheon of values? inevitably in tension with one another."

Same problem.

"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."

Not really. Americans destroyed the Federalist Party because it failed to respect the First Amendment. They were pretty clear which way they wanted to have it, to the point where they destroyed the dominant political party of the time.

"The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice."

So between Bill of Rights liberties and, dare I say it, the unenumerated powers of the government, the Court must arbitrate (and in the current day). Heck, and I'd always thought the Bill of Rights had "the better claim," in any age.

He discussed Plessey v. Ferguson, upholding segregation, and Brown v. Board, striking it down, as "the meaning to the justices of the fact of segregation had changed. ?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."

Doesn't that mean he accepts that Plessey was right when it was decided, "right here, right now," and became wrong half a century later? I'd rather prefer to think it was wrong and odious from the beginning, for reasons entirely external to the judges.... it just took them half a century to see the light.

Above all else -- beyond "not originalism," where does he say what his method is? It seems to be that everything is balancing, the people foolishly want everything, and we must, out of our greater wisdom, decide what is in their best interest. If what we want coincides with what the Framers wanted... well, that's OK, too.

Full post as published by Of Arms and the Law on June 04, 2010 (boomark / email).