Justice Souter: Closet Originalist?


It’s hard not to love the recently-retired Justice Souter.  A one-of-a-kind individual who writes, not with a computer or even a typewriter, but with a fountain pen.  Who never uses email, cell phones or answering machines.  Whose home is filled with thousands of books, but no TV.  More than that, he doesn’t fit neatly into any particular camp.  Too liberal for the conservatives, and too old-fashioned for the liberals.  A former farmboy who lived in the same farmhouse all his life (until the weight of his books prompted a move last year), and yet at the same time as ivory-tower as they come.

But we’ve never been particular fans of his jurisprudence.  It seems too far removed from reality — both the realities of modern life, and the realities of law.  And the ironic thing is, it’s precisely because his judicial philosophy strives to reflect these realities as they change over time.  Because, despite being as stuck-in-the-past as can be imagined, he is not an originalist, but one who thinks the meaning of the Constitution must evolve with time.  And, being such an old-fashioned guy, he’s not exactly the most likely to know just how the times be a-changin’.

This was highlighted really well by his speech at Harvard’s commencement ceremonies this year.  (You can, and should, read the full text here.)

Souter used his speech to summarize why he thinks the jurisprudence of originalism is wrong.  Originalism is simply the idea that the meaning and principles of the Constitution do not change over time — and that reading in new meanings is little more than legislating from the bench.  Souter said this is wrongheaded, because the Constitution contains a mess of competing principles, and a judge cannot resolve tough cases simply by reading the document.  Instead, a judge needs to balance the competing principles.  This requires a value judgment.  And he said the value judgment must evolve as society evolves.  Otherwise, we’d be stuck with the values of less-enlightened times.


To illustrate this, he started off with a discussion of the Pentagon Papers case (which decided that the government couldn’t get an injunction to prevent the NY Times from publishing a classified report during wartime, because that would be an impermissible prior restraint on the First Amendment).

This wasn’t a great example, frankly.  The feds, who wanted the injunction and lost, are the ones who wanted a new interpretation of what the First Amendment means.  They lost because the Court said the words mean exactly what they say, and nothing else.

Souter doesn’t seem to think the case was wrongly decided.  He really just wanted to make the point that the Court had to choose between competing constitutional principles — freedom of the press vs. protecting national security.  Just as freedom of speech can lose out to other considerations (such as inciting a riot), it can also win out as here.  But the meaning of the right isn’t open to new interpretation.

Well, that’s precisely the originalist position.  The meaning of the right doesn’t change.  You balance its original principles against the competing original principles, to craft a rule consistent with all.  He seems to be arguing in favor of originalism here.


His second argument isn’t much better.  In this one, he says that originalism would never have resulted in Brown v. Board of Education.  Instead, it would have left us with segregated schools under the separate-but-equal rule of Plessy v. Ferguson.

But again, he completely misses the point.  Originalism would never have resulted in Plessy v. Ferguson, which disregarded the plain meaning of the Fourteenth Amendment, in order to reflect the evolving sentiments of its time.  The separate-but-equal rule came about precisely because the Court had treated the Constitution as a living, mutable document.  And a true originalist would never stick with the Plessy rule just because of stare decisis, as Souter strongly implies.  Brown was the result of the times catching up to the original meaning of the document, not the other way around.

Again, he seems to be arguing in favor of originalism here.  (You can read another, longer critique of his second argument in tomorrow’s WSJ, already available online here.)


How can this be?  Is it possible that Souter’s jurisprudence all along has been based on a fundamental misunderstanding of this basic issue?  Maybe he’s been an originalist all along, but would never believe it because he doesn’t identify with the label?  (A common failing, to be sure.  We often find ourselves cheekily pointing out to various Democrat friends that their positions are actually solidly Republican, a thought many of them find abhorrent solely because of the label.)

Whatever the reason, his speech is cause for serious concern.  He may be retired now, but he’s not the only one out there who thinks the meaning of the Constitution should evolve over time.  It’s an issue that drives a lot of the debate over judicial “activism” (with both liberal and conservative folks throwing that label around these days).  We’d like to believe that people of Souter’s stature in the debate not only know what they think, but understand why they think it. 

Souter himself, though, does not seem to.  We’d be lying if we said we weren’t more than a little disappointed.


[Update 6/15/2010 — There is some more nifty commentary on this today over at the Volokh Conspiracy here and here.]

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