In his commencement address at Harvard last week, former Supreme Court Justice David Souter offered up an eloquent and thorough debunking of the popular conservative delusion of constitutional “originalism.”
E.J. Dionne sums it up nicely:
At issue is "originalism," an approach to reading the Constitution whose seeming precision has given conservatives a polemical advantage over the liberals’ "Living Constitution" idea that appears to let judges say our founding document means whatever they want it to mean.
Justice Antonin Scalia, the court’s leading orginalist, summarized his opponents’ attitude toward the Constitution with four words: "You know, it morphs."
Now, thanks to Souter’s commencement address at Harvard last week, Scalia’s critics have fighting words of their own. Souter, who did not mention Scalia by name, underscored "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."
The problem is not only that "constitutions have a lot of general language in them in order to be useful as constitutions," but also that the U.S. Constitution "contains values that may very well exist in tension with each other, not in harmony."
This means that "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."
Souter focused on the example of Brown v. Board of Education, the 1954 decision that declared segregated schools unconstitutional. "For those whose exclusive norm of constitutional judging is merely fair reading of language applied to facts objectively viewed,” he said, “Brown must either be flat-out wrong or a very mystifying decision.”
The Supreme Court’s conservative wing has shown itself willing to depart from originalism when it serves their purposes. What’s surprising is that the originalist “balls and strikes” argument is still dominates discussions on the courts.