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David Souter vs. the Antonin Scalias
"Did the judges of 1954 cross some limit of legitimacy into lawmaking by stating a conclusion that you will not find written in the Constitution?" Souter asked rhetorically. "Was it activism to act based on the current meaning of facts that at a purely objective level were about the same as Plessy's facts 60 years before?"
Obviously, Souter doesn't think so. But while conservative scholars such as Michael McConnell have constructed ingenious arguments to show how originalism could accommodate Brown, it's hard to see judges guided by that doctrine reaching as boldly as the 1954 Warren court did.
Contrast Souter's view with Scalia's mocking reference to those who "think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year." Well, between 1896 and 1954, they did change.
The core problem with originalism is that it overlooks what the historian Gordon Wood has observed about the Founders' work: that it is exceedingly difficult to discern the "true meaning" of the Constitution since it is the product "not of closet philosophizing but of contentious political polemics."
As a result, "many of our most cherished principles of constitutionalism associated with the Founding were in fact created inadvertently." The historian Joseph Ellis offered a parallel argument in The Post last month.
Souter is right to say that "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."
Because these desires clash, courts are "forced to choose between them, between one constitutional good thing and another one." Souter's view admits that this is what judges do. Originalists pretend they're not choosing. Which approach is the more trustworthy?