It is Written

The Washington Post columnist, E.J. Dionne, Jr., apparently thinks he has unloaded some coup de grace with his enthusiastic report of retired Supreme Court Justice David Souter's recent Harvard commencement address, a speech in which Souter directly challenges the "originalist" interpretation of the Constitution. But by doing so, Dionne reveals that he is out of his intellectual league and needs to restrict himself to commenting on who's up and down, who's in and out, in Washington.

Dionne, through Souter, imagines that "originalism", which Souter calls "the fair reading model", suffers a "fatal flaw". While the misplaced enthusiasm for the challenge is Dionne's, the argument is Souter's and I'm afraid it suffers a fatal flaw or two itself. Souter summarizes his argument thus:

The fair reading model fails to account for what the Constitution actually says, and it 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. Not even its most uncompromising and unconditional language can resolve every potential tension of one provision with another, tension the Constitution’s 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. These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments. Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.

Where to begin?

First, Souter is guilty of constructing a straw man. No originalist interpreter ever imagined that the Constitution was free of conflicting principles. Even a cursory reading of the debates at the Constitutional Convention, not to mention the arguments presented in The Federalist, shows that the Framers were acutely aware of the fact that they were struggling mightily to strike an acceptable balance between, prominently, the competing values of liberty and order. A balance that would be a fair expression of, among other things, the American mind. It was, after all, the American people through their representatives who would ultimately ratify the document. When conflicts between differing principles arise in the law, it is perhaps the chief role of a Justice sitting on the High Court to adjudicate between them. And what's more, no originalist ever argued that the process of deciding would be always easy. In fact, as often as not it's likely to be difficult, even extremely difficult.

Second, and most importantly, when there is a tension, when a judge must decide, how, then, will he go about it? This is actually the crux of the matter. In the last sentence of Souter's quoted above, he employs the word "meaning" and although he doesn't say as much, he invests it with all the post-modern epistemological doubt that is the bane of our age. According to Souter, and far t0o many like-minded others such as Dionne, a judge must search for the meaning of the words of the Consitution because the meaning has changed, or the way we understand them has changed, or, get this, they really have no meaning at all, and never did.

Can he not see that if this is so, then it it is the end of constitutional government altogether? The very purpose, and genius, of a written constitution is to fix the nature of the originating social compact. If it's not fixed, then the society will inevitably be governed by caprice and the arbitrary will of the strongest. If indeed the words of our Consitution are that malleable or that meaningless, then whence Souter's authority as a judge? Why is his conclusion as to the meaning of the words any more authoritative than any other judge, than any other branch, than any other resident power, in or out of government? His argument is worse than fatuous, it's dangerous.

That which is "living and breathing" is the society itself, not the Constitution. To say that "times change" is to state the obvious. It is because they change that an originalist returns to the written document. To remark that even an originalist brings to his interpretation of that document his own limitations and prejudices is to state the obvious again. Two-hundred and more years since its ratification makes ascertaining the meaning and intentions of the Framers sometimes difficult. (Although not nearly so much as people like Souter would have us think.) But if a judge's understanding of his proper role is that he is constrained by those words, then no matter how strong his personal preferences and prejudices in a case, he is at least armed with a substantial reason to set those biases aside. By contrast, a judge of Souter's sort has absolutely no reason to do so. By his own argument, he has denied himself those reasons and that reasoning. Hence, his recourse, his only recourse is always to conclude that it is so "because I say it is so."

Good riddance! Now, if we can only get E.J. Dionne, Jr. to retire as well.