Souter happy to shape our Constitution

(from USA Today, June 15, 2010)

By David B. Rivkin Jr. and Lee A. Casey

Our perennial national debate over how to interpret the Constitution will soon be renewed, as the Senate considers the Supreme Court nomination of Solicitor General Elena Kagan.

In fact, former Justice David Souter set the discussion in motion last month in a Harvard commencement address— arguing that seeking to resolve difficult constitutional questions based on an honest effort to construe that document’s words (whether broadly or narrowly) “has only a tenuous connection to reality” and leads to bad decisions.

Souter’s candor is commendable but also genuinely troubling — the practical equivalent of a retired cardinal announcing that religion is an opiate for the masses. Even judges who quietly believe that the Constitution is an irredeemably reactionary document, which they must pull and push into the 21st century, are not generally so bold, preferring instead to cloak their innovations with references to the Constitution’s text.

Souter, however, argues that the Constitution is too full of ambiguous language and competing imperatives to sustain a textual approach to its interpretation. Like the people it serves — who throughout their history have demanded security and liberty, liberty and equality — the Constitution tries to have it both ways and is too often irreconcilable.

It is, therefore, the courts (and the Supreme Court especially), that Souter believes must “decide which of our approved desires has the better claim,” and this cannot be done simply by reading the Constitution’s words. Put differently, we all must trust in the judges to find our way through the morass, to make the right choices between competing constitutional imperatives, and we cannot accuse them of making up the law when they make choices we do not like. It is their job, not ours.

When judges rule

It would be difficult to articulate a decision-making model more antithetical to American democracy and the Constitution’s own design. It is often said — by the Supreme Court among others — that we have a “government of laws and not of men.” Judges are people, not the living embodiment of the law. When a judge makes the choices Souter suggests, without regard to the Constitution’s words and their original meaning, it is the judges who rule and not the law.

The Constitution’s drafters understood this very well and, whatever mistakes they made along the way, they manifestly did not empower the courts to choose freestyle among constitutional values. Their judiciary was to be, as Alexander Hamilton explained at the time, the “weakest” branch of government that could exercise only “judgment,” not the awesome congressional power of the purse or the president’s control over the military.

Indeed, the Supreme Court itself did not claim the right to invalidate actions of Congress and the president as unconstitutional until 15 years after the Constitution was ratified.

This is not to say construing the Constitution is easy; it is not. To the extent there are competing values and ambiguous provisions in our founding document, the Constitution itself prescribes how choices ought to be made. To be sure, as human beings, every judge brings a lifetime of personal experiences, beliefs and prejudices (good and bad) to the task of judging. Wading into the Constitution may well seem like walking through a museum of medieval art, which speaks to us in fundamentally different ways than to our ancestors. But the judge’s job, his or her sacred trust, requires disciplining these personal experiences and beliefs toward a faithful interpretation of the Constitution’s text.

Moreover, it is possible to rise above personal preference to fairly interpret that text. No better example can be found than in one of the precedents Souter himself discussed at Harvard, to buttress his core claim that reliance on constitutional text causes bad decisions. In Plessy v. Ferguson (1896), the Supreme Court upheld the principle of “separate but equal,” establishing the legal basis for generations of racial segregation. But there was a dissent.

The Harlan model

Justice John Marshall Harlan (“the Elder”) was a man who passionately believed that the “white race” was superior to all others. Yet, as Justice Clarence Thomas likes to point out, Harlan looked into the Constitution and could not find there, in its words as fairly construed, any basis for separate but equal. The Constitution, Harlan wrote, says the government must guarantee the equal protection of the laws to all. That is what it said, and that is what it meant. Harlan was, of course, vindicated in 1954, when the Supreme Court overruled Plessy and rejected the notion of “separate but equal” in Brown v. Board of Education.

The bottom line is that bad constitutional decisions, far from being the result of the Constitution’s frailty, are caused by the frailties of judges who depart from it. It is to be hoped that, if the Senate confirms Kagan’s nomination, she will give an ear to Justice Harlan rather than Justice Souter.

David B. Rivkin Jr. and Lee A. Casey are partners in Baker & Hostetler LLP and served in the Justice Department under Presidents Ronald Reagan and George H. W. Bush.



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