Souter's Adults Only Constitution

"[B]ehind most dreams of a simpler Constitution there lies a basic human hunger for ... certainty and control ... And who has not felt that same hunger? Is there any one of us who has not lived though moments, or years, of longing for a world without ambiguity, and for the stability of something unchageable in human institutions?"

The words are those of Justice David Souter, now retired from the United States Supreme Court. He spoke them at this year's Harvard commencement. There is a stark elegance to his address that makes it worth sharing. I think that we sometimes forget that the Constitution is really quite simple. It is not a sacred text answering all life's riddles. Rather, it is a starting point, framing discussions about conflicting values. The act of interpreting it necessarily requires making choices. Judges make those choices. Souter's speech.

Souter promised the audience a view of what it is like to decide Constitutional cases. His address was not a law review article filled with doctrinal quibbles. It was not a scholarly treatise of the various methods and means of teasing results from a case or controversy. The address was a simple, almost Thoreau-like, assessment of the Constitution in action. Souter's Constitution neither lives nor expresses occult original meaning. It is a simple craftsman's tool.

The justice took aim at the "fair reading" model of Constitutional interpretation, which holds that there is a correct solution to every constitutional issue. This jack-in-the-box theory of justice holds that once facts are presented to the court, whatever facts may mean, judges applying a fair reading of the Constitution should all arrive at the same solution. Reading the Constitution fairly, it turns out, is really simply an implicit article of faith. "The answers are all there, trust me," such a reader says. "[T]he fair reading model has only a tenuous connection to reality," Souter notes. How many of our constitutional scholars smell the wick rather than blood, sweat and tears?

Souter took aim at a notion I hold dear: the Constitution as contract. "[T]he Constitution is no simple contract, not because it uses a certain amount of open-ended language that a contract draftsamn would try to avoid, but because its language grants and guarantees many good things, and good things that compete with each other can never be realized, all together, and at once." This is adult realism at its best, and it shames me into re-thinking an often knee-jerk reaction to anything impinging upon what I regard as liberty, the paramount of all values in my pantheon.

Because values conflict, judges must balance them. This is not legislating. Rather it is making judgments, the quintessential judicial task. "[T]he explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises.... A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well." One hears the voice of a loving parent here, explaining to the tempestuous child that she can do all she wants, she simply cannot do everything all at once: Choices must be made, priorities set.

This is the language of intelligent common sense. It illustrates why life experience is so important for a judge. The task of finding meaning and weighing competing values is not akin to gathering seashells at the seashore.
"[J]udicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page."

I cannot improve upon what Souter said. It is simply a beautiful statement of an intellect honestly confronting the task of making life-defining judgments. Souter stands well within the tradition of such writers as Isaiah Berlin, whose "Two Concepts of Liberty," initially given 1958 as his inaugural lecture as Chichele Professor of Social and Political Theory at Oxford, remains required reading for all who care about how to tease simple meaning from words.

If you are weary of the law's ever-present struggle and your head aches from the pounding of conflict rights, duties and obligations, read Souter for a simple re-orientation to why the law remains one of the most intellectually challenging professions. This essay enlightens and brightens my dark temperament. Souter's Constitution is a decidedly adult pleasure.
Comments (1)
Posted on June 17, 2010 at 7:54 am by William Doriss
Souter's address was excellent. Just got around to...
Souter's address was excellent. Just got around to reading. But we knew it would be, and would most definitely be disappointed if it were not. We're talking Harvard after all! In any case, we took your word for it.

However, I have a radical idea--which is probably not a new idea at all: Term-limits for judges and justices. (states' attorneys and DAs as well.) Ten years is nice round number. If after ten years, you have not made your mark and can be shown to be lacking somehow, then out the door you go. Let's see if we cannot find someone else to do your job? No man/woman is indispensable.

I don't like the idea of any public 'servant' staying in one place too long. They get comfortable and lazy. They lose sight of who they are vis-a-vis the public they serve. Move over and give someone else a shot at it.

I'm talking a reverse refrain of the Carole King lyric: Doesn't anyone stay in one place anymore?!? Well, yes! Certain judges, justices, public and elected official overstay their welcome to point of early-onset senility and insularity from the workaday world of us regular folks.

Ever been in a busy courthouse or legislative office building and watched everybody busy like bees? What are these people doing? Do they really have jobs? Is this productive work? Who pays them and how much?

How much did Doug Souter get paid for giving this commencement addrerss? I don't think he did it for free. Maybe HE paid them to allow him to deliver his pretextual address which may have been written by an associate, a clerk or an assortium of same.

Finally, you say, "The law remains one of the most intellectually challenging professions." Oh really! Elsewhere you say, "The law is an a$$." I'm inclined toward the latter, but I don't think you can have it both ways. So I hate to pull an intellectual punch, but you should make up your mind and stick to it until such time as you have reason to change your mind.

I, for one, believe the Constitution guarantees me, an honorable (?), native-born citizen, certain rights, protections, privileges and liberties which are spelled out generally and which can be accurately gleaned from the text, the meaning of the text. It's not at all ambiguous to me what those rights are. If certain situations or cases are ambiguous to certain officials and judges, inconsistently across the spectrum, well then that's their problem and not mine. They need to go back to school and study harder. I believe there are answers to our problems and crises if clear minds will stop shouting at one another, stop the back-biting criticism and stop playing the finger-pointing blame-game.

Let's face it. The Plessy decision was wrong. It was wrong then, it's wrong now. Let's call a spade a spade. There's no point in rationalizing today by saying it was correct according to the post-Civil War prevailing sentiments at the time. And that is what Souter seems to be doing; he's finessing it. He does not want to ruffle any feathers or rock the boat of the Supreme Court as an institution. No matter how brilliant, he too is part of the problem, and not necessarily a part of the solution.

Let's face it. A lot of people want a lot of things for nothing. Nobody wants to do the heavy lifting in life, and that includes incompetent states' attorneys, judges and justices. Those people need to be removed from office, and quickly before they do serious damage.

It becomes my problem, however, if I get caught in the soup so to speak. Somebody once told me, getting involved in the legal system is like swimming a big bowl of molasses. No matter how hard you try, you just can't get out. You're stuck in the soup, if you catch my metaphor. What does the Constitution say about that, and how comes my senator will not return my calls, me e-mails, or my U.S. postal mail? Inquiring Minds want to know the answers to these perplexing (intellectual?) questions.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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– Norm Pattis


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