Making it up


As the Senate prepares to consider the Supreme Court nomination of Solicitor General Elena Kagan, recently retired Justice David Souter of New Hampshire has given that august body a strong opening question:

“When deciding how much importance to assign to the words and original meaning of the U.S. Constitution in deciding a case before you,” the senators may well want to ask, “you’re not going to play as fast and loose as Justice Souter now recommends, are you?”

In a commencement address at Harvard last month, Mr. Souter argued that referring back to the words of the Constitution and the Bill of Rights — trying to make decisions by parsing and applying the meaning of those words and the original intent of the framers, “has only a tenuous connection to reality,” when compared to the way the modern court reaches its decisions.

Because the Constitution was written in broad language and can be read to mean anything we choose, always creating conflicting imperatives, it is up to modern judges in their personal judgment and wisdom to “decide which of our approved desires has the better claim” at any given time, the recently retired justice argued.

As an example, he chose the 1896 case Plessy v. Ferguson, which created the legal precedent for the cynical doctrine of “separate but equal” by holding it was acceptable to legally require black passengers to ride in separate railway carriages from white passengers. Mr. Souter thus suggests that at the time of the Plessy decision the law “fairly read” and the facts “objectively viewed” were consistent with this unfortunate decision.

Wrong, insist John O. McGinnis and Michael B. Rappaport, professors of law at Northwestern University and at the University of San Diego, in a recent Wall Street Journal op-ed. “Plessy was a dreadful decision precisely because it neglected the Constitution in favor of giving reign to what the justices saw as their own current social realities” in 1898.

At the time of Plessy, many thought current social realities, such as the public perception of social differences among the races, required segregation. “Thus Plessy provides an excellent example of Justice Souter’s preferred method of constitutional interpretation, in which social realities trump the Constitution’s original meaning,” Mr. McGinnis and Mr. Rappaport observe. “The historical reality is that this interpretive method permitted justices to create a Constitution of their own contrivance in the service of injustice.”

Mr. Souter’s commencement remarks were a thinly veiled assault on those who, like Justices Antonin Scalia and Clarence Thomas, think the Constitution should be interpreted according to its original meaning. But when judges actually go astray is when they abandon the principles of equal protection of individual rights set down in our founding documents, because they find those animating principles inconvenient to the pursuit of some short-term, “politically correct” result.

Is it merely a schoolchild’s cherished myth that the justices wrestle to understand and apply the original intent of the written Constitution they’ve sworn to “protect and defend”?

“It would be difficult to articulate a decision-making model more antithetical to American democracy and the Constitution’s own design” — to turn on its head the honored tradition that we have a “government of laws and not of men” — than the model proposed by Mr. Souter at Harvard last month, say David Rivkin Jr. and Lee A. Casey, Washington attorneys who served in the Justice Department under Presidents Reagan and George H.W. Bush, writing in USA Today.

All court nominees need to be asked whether they agree with Mr. Souter’s assertion, that the Constitution is a document so confusing and out-of-date that seeking guidance in its words should bear only a “tenuous” connection to a judge using his own prejudices to decide what’s best.

Because that is the path — however “well-meaning” — that leads to chaos, corruption and tyranny.

 

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