John Roberts' canon - a judge calls "balls and strikes" - and the recitation of that unrealistic umpire metaphor by Sonia Sotomayor last summer - have increased cynicism about the Senate's judicial confirmation process, which has come to be a subjugation ritual where ripe fruit is desiccated, as Heather Gerken observed. Some fear a similarly bloodless accommodation by Elena Kagan.
Now comes the normally reticent Justice David Souter who delivered a lucid address at Harvard's Commencement last week. It is a guide not only to Constitutional interpretation but, with a little extension, for all who must apply general principles - like those of tort's "reasonable conduct in the circumstances" - to particular cases.
A link to the complete text is below, but here is what I think is the key thematic statement:
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. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.Text of Justice David Souter’s speech | Harvard Gazette Online
Souter's speech provides a cogent defense of the business of constitutional adjudication and a fine de-bunking of the notion that original intent must be the touchstone of analysis.
ReplyDeleteIt has always seemed to me that the originalists have in their minds the notion that the Constitution is a code or statute and with it the mind-set of the 19th century proponents of codification. But those ideas were foreign to the framers. Their mind-set was the process of English common law adjudication which inevitably involved the application of standards of conduct (e.g., due process of law) under evolving factual circumstances. All in all a sounder approach to take when faced with a document like a constitution.