Interesting: Souter takes on originalists at Harvard

For those who watch the U.S. Supreme Court, a theory of constitutional interpretation–so-called “originalism”–is now in vogue. The theory, which is often mouthed by politicians, suggests that the only way to interpret the U.S. Constitution is to look at what the founders wanted and thought and felt back when they wrote the document.

It’s got simplistic appeal, even if it’s a fairly goofy notion. It’s goofy, in that history is rarely anything if not subjective, such that anyone who claims to know what the founders thought centuries ago is necessarily guessing. Sometimes it’s an educating guess, but it’s a guess all the same. As well, it presumes that all should be set in stone, without considering the tremendous changes brought over the centuries by technology, population growth, culture and the like.

Maybe I can explain what I mean better by asking this simple question: What would Thomas Jefferson or James Madison have thought about Google? Originalists claim to be able to apply the founders’ intentions to free speech issues in the Google-era. I think that’s fanciful at best. “My answer, for what it’s worth, is, “Who knows?!”

Originalist thinking seems to go beyond constitutional adjudication. For that reason, the airy concepts are more important to consumers than we might realize.

So all of that is background for big props to CBS legal correspondent Andrew Cohen, a Twitter friend, who wrote this thoughtful piece on Justice Souter’s commencement speech at Harvard. Justice Souter, who retired recently, takes a reality-driven view of the constitution. He understands that much of work of constitutional interpretation is difficult because the values embodied in the constitution co-exist in tension. That tension creates ambiguity, which is necessarily at odds with originalists and sound-bite politicians whose world is black and white.

I’m a fan. If the U.S. Constitution and the Supreme Court matter to you, it’s worth a read. Hats off to Andrew Cohen for noting and explaining what many of us missed.

Addendum: Link to the text of the Souter speech…I would credit a particular Philadelphia rock star lawyer who passed it along, but that would be wrong for reasons I can’t begin to explain.

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