The Constitution: Souter vs. Scalia

This should be “the philosophical shot heard ’round the country,” said E.J. Dionne in The Washington Post. In a commencement address last week, retired Supreme Court Justice David Souter brilliantly dismantled “originalism,” the legal theory espoused by Justice Antonin Scalia and other conservatives. Originalists claim that a good judge simply applies the original text of the Constitution to any legal dispute, and is not influenced by either his own views or changes in society over time. But as Souter pointed out, the Constitution upholds a wide “pantheon of values,” many of which—like freedom of speech and national security—can conflict. A judge’s job, said Souter, is to choose between the Constitution’s competing values, based on specific cases and their impact on real people in the real world. The language of the Constitution, in other words, has no one “true meaning’’ to be discerned by purely objective judges; thus, “separate but equal’’ seemed entirely reasonable to the Supreme Court in 1896, but inherently wrong and clearly unconstitutional in 1954.

“No one, absolutely no one, actually holds’’ the legal philosophy Souter attacked, said Matthew Franck in National Review Online. Scalia freely concedes that there are “competing values” within the Constitution. The originalist simply believes that the way to resolve them is by looking at the text rather than by applying one’s own feelings and “life experiences.” Souter even floated the old canard, said Damon Root in Reason.com, that true originalists would uphold segregation out of deference to our slave-owning Founders. This is false. Had the justices who upheld the Jim Crow laws been originalists, they would have used the 14th Amendment’s plain guarantees of equal protection and economic liberty to end the shame of segregation even sooner.

Souter has done liberals no favors with this line of attack, said Doug Kendall in HuffingtonPost.com. By embracing the notion of a fluid, “living” Constitution whose meaning shifts over time, he plays right into the conservative caricature of the liberal activist judge who rules with his heart. In reality, it’s Scalia and his cohorts on the court who routinely twist the text of the Constitution to justify their radical beliefs—that corporations are exercising “free speech’’ when they buy elections, for example. The best argument against originalism is that “the Constitution itself points in a progressive direction.” Read it. It’s the truth.

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