Saturday, May 29, 2010
Retired Justice David Souter criticized a "fair reading model" of constitutional interpretation and promoted more nuanced, value-conscious interpretation in his Commencement address at Harvard last week.
Souter noted that his speech came at a time when constitutional interpretation will once again be a topic for public discourse--and when claims of judicial "activism" are likely to be high--with the end of the Supreme Court's term and at the beginning of Senate hearings on Elena Kagan, President Obama's nominee to fill retiring Justice Stevens's seat.
Souter used two cases to illustrate how a "fair reading model" of constitutional interpretation--a syllogistic interpretation that simply applies the plain text to plain facts--fails to explain what the Court should do, and what it actually does. Souter used the Pentagon Papers Case, New York Times v. United States, and particularly an exchage at oral argument between Justice Black and Solicitor General (and Harvard Dean) Erwin Griswold, to show how the Court accounted for competing values in the Constitution, and did not simply apply Justice Black's absolutist position on the First Amendment speech clause:
The Government lost the case and the newspapers published, but Dean Griswold won his argument with Justice Black. To show, as he put it, that "no law" did not mean "no law," Dean Griswold had pointed out that the First Amendment was not the whole Constitution. 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.
And although he failed to convince the Court that the capacity to exercise these powers would be seriously affected by publication of the papers, the Court did recognize that at some point the authority to govern that Dean Griswold invoked could limit the right to publish. The Court did not decide the case on the ground that the words "no law" allowed of no exception and meant that the rights of expression were absolute. 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 to go the other way.
Souter then used Brown v. Board of Education to illustrate how changes in society can influence the Court's notion of equality:
As I've said elsewhere, the 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 more 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.
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. . . . 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.