David Souter, Jim Crow, and the Living Constitution


Former Supreme Court Justice David Souter gave a big commencement speech last week at Harvard University where he criticized originalism—the school of thought that says the Constitution should be read according to its original public meaning—for having "only a tenuous connection to reality." According to liberal pundit E.J. Dionne, Souter's speech proves that liberal champions of the "Living Constitution" now "have fighting words of their own."

Fighting words, maybe. But accurate words? Not exactly.

Souter argued that originalism has nothing useful to say about the racial segregation imposed by the South's Jim Crow regime, and claimed that it was only thanks to living constitutionalism that the Supreme Court eventually nullified the vile doctrine of "separate but equal." Here's the relevant portion of his commencement speech:

[Brown v. Board of Education] ended the era of separate-but-equal, whose paradigm was the decision in 1896 of the case called Plessy v. Ferguson, where the Supreme Court had held it was no violation of the equal protection guarantee to require black people to ride in a separate railroad car that was physically equal to the car for whites.  One argument offered in Plessy was that the separate black car was a badge of inferiority, to which the court majority responded that if black people viewed it that way, the implication was merely a product of their own minds.  Sixty years later, Brown held that a segregated school required for black children was inherently unequal.

For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision.  Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional.  But if Plessy was not wrong, how is it that Brown came out so differently?

Here's the problem with Souter's claims: The Plessy decision is wrong under an originalist reading of the Constitution. Originalism includes the original public meaning of the 14th Amendment, which commands: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Among those privileges or immunities is the right to economic liberty. Remember that the origins of the 14th Amendment lie in the anti-slavery politics of the Radical Republicans who drafted it and spearheaded its ratification. Their philosophy centered on a radically libertarian form of self-ownership, one that included both the right to armed self-defense and the right to liberty of contract. That philosophy was enshrined in the Constitution when the 14th Amendment was ratified in 1868.

In Plessy, the Supreme Court upheld a Louisiana law that forbid railroad companies from selling first-class tickets to black customers. That law was a blatant violation of economic liberty under the 14th Amendment and should have been struck down as such. That the Supreme Court failed to do so isn't an indictment of originalism, it's an indictment of the justices who failed to take the Constitution at its word.

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  1. Fuck Souter; he needs to go crawl back under that rock in barren Vermont.

    1. But first, the rock needs to be taken under ED.

      1. No, no. Let him move it and then take it. Lather, rinse, repeat until he dies of exposure.

        1. Vermont is not barren. IMO, there is no place in the country more green, more lush and more alive, in July.

          Souter hails from the granite state, not the green mountain state.

          1. Vermont is not barren. IMO, there is no place in the country more green, more lush and more alive, in July.

            You need a trip to the Missouri Ozarks in July. It’s essential a jungle with hillbillies.

            PS. I never found Souter very impressive.

            1. The Ozarks is the greatest place to live. I’ve spent my whole life wandering these hills and am still amazed by the scenery every day.

    2. Though I am somewhat ashamed to share a state with him, he is from New Hampshire.

  2. Souter’s a dissembling, duplicitous fuck? Shocker.

    1. Dionne is a hypocrite to criticize “right-wing” approaches to the Constitution.

      Would Dionne support justices “understanding” that the First Amendment does not protect criticism of the government, that the Second Amendment does not protect the right to bear handguns, or that the Fourth Amendment protects anything at all?

      1. Very likely he would support those “understandings,” sadly.

      2. Actually, I suspect E.J. Dionne is probably cheering proposed Federal changes that will allow prosecution of anyone for “hate speech”. If you dare criticize anything that upsets some bureaucrat or any aggrieved “minority”, you’ll be charged with “hate speech crimes”. Of course under the new Federal bailout of newspapers included in the act, people such as Dionne will be on the Federal payroll via subsidies to the politically correct media outlets. As long as he writes want the Feds tell him to write, he’ll do just fine.

  3. Souter must think Plessy v. Ferguson was right…

    1. Racist!!!!!!1!!!!

    2. Or maybe that the Slaughter-House Cases were right.

  4. Threadjack: Holy shit. The Falcon 9 just launched and launched successfully. Go, baby, go!

    SpaceX has a live feed.

  5. justices who failed to take the Constitution at its word.

    Not exactly in short supply.

  6. Tulpa should be along soon, to explain how we should have no expectation of privacy in our automobiles, because such things did not exist at the time of the writing of the Constitution.

    1. And then you point to the 9th amendment and he says…..

    2. Looks like “reply to this” virgin P Brooks has already been along to bravely distort my argument.

      I was arguing that the freedom to petition the government can obviously be exercised without video technology, so the that freedom does NOT imply that people have a constitutional right to record police encounters. Not even remotely the same thing as you’re attempting to pin on me, but you knew that.

      1. *barf*

      2. I’ll bite at this one with a point:

        Unio exclusio implies that the freedom of the press must be something more/different/beyond/(less than?)freeom of speech, given the enumeration of both. Given that, someone could try to make a “No government interference with press activities”

        1. …argument” should be the last word.

      3. Its not a FREEDOM to petition government, its a RIGHT to petition government. As long as it meets the “your rights end where my nose begins” test, nobody can legally take that RIGHT from an American Citizen. The form it takes is inconsequential, yet you make it the center of your argument.

  7. The Falcon 9 just launched and launched successfully.

    I just read the launch was scrubbed.

    1. Dude, it’s in space.

      1. Skipping ahead from the launch, here’s a recent status report from SpaceX: “T+ 00:09:04 – Falcon 9 has achieved Earth Orbit!”

        1. This is huge news. What’s ironic is that it arguably vindicates Obama’s quasi-policy on space, which makes it surprising that the media isn’t bating to this right now. Probably the usual reporters-are-too-dumb-to-understand science/technology/man/logic/common sense problem.

    2. I was watching on CNN. As they were showing live shots from the rocket ascending, there was a message on the bottom of the screen: “Falcon 9 launch aborted”

      1. That’s still the lead over at Google News. The danged thing has been in orbit for a while now.

  8. Wow dude that actually makes a LOT of sense when you think about it.


  9. In Plessy, the Supreme Court upheld a Louisiana law that forbid railroad companies from selling first-class tickets to black customers. That law was a blatant violation of economic liberty under the 14th Amendment and should have been struck down as such. That the Supreme Court failed to do so isn’t an indictment of originalism, it’s an indictment of the justices who failed to take the Constitution at its word.

    It seems intuitively obvious, doesn’t it. It is beyond my ability to understand progressives that can’t see it.

    Nearly all of the problems in the world are due to the failings of the individuals that hold positions of authority. The purpose of the Constitution is to limited the damage caused by these people by limiting the authority of the positions they hold.

    1. These are the same Progressives that call anyone who disagrees with them racist including the Texas School Board. Why do you suppose that the “liberals” opposed inclusion of the Black founders and patriots in history books? Could it be that their argument that the Founders were white racist might prove disingenuous? What hypocrites that will rationalize anything and who really follow the ends justifies the means radical thought.

      1. Beyond Crispus Attucks, who are these Black founders and patriots?

        That part was skipped in my education.

        1. Look up Blacks in Revolutionary War … they were on both sides fighting for freedom…. I am 64, and I knew that from my grade school history classes.

        2. I am not versed in any pre-19th century black patriots, but Frederick Douglass and Zora Neale Hurston had some very radical libertarian views.

          In addition, I am highly skeptical that Booker T. Washington would be supportive of the modern progressive movement. Then again, that’s because he was an evil, greedy industrialist, in contrast to the highly ethical proto-communist and benevolent academic W.E.B. DuBois (/sarcasm).

  10. Someone (Souter/Dionne?) might want to read Harlan’s dissent in Plessy. Somebody had it right back then.

  11. That the Supreme Court failed to do so isn’t an indictment of originalism, it’s an indictment of the justices who failed to take the Constitution at its word.

    Does this apply to the justices who made the rulings in Minor v. Happersett , Michael M. v. Superior Court , and Baker v. Nelson ?

    1. And what about Kramer v. Kramer; Godzirra v. Mecha-Godzirra; Alien v. Predator? Huh? What about the “Justices” (and I use the term loosely) in THOSE cases…..

      1. And what about Kramer v. Kramer; Godzirra v. Mecha-Godzirra; Alien v. Predator? Huh? What about the “Justices” (and I use the term loosely) in THOSE cases…..

        I cited real cases where the Supreme Court

        – decided that the 14th Amendment did not guarantee the right to vote for women.

        – decided that the 14th Amendment did not prevent states from punishing underage boys for having consensual sex with underage girls while exempting underage girls from punishment for having consensual sex with underage boys.

        – decided that the 14th Amendment did not prevent states from refusing marriage licenses to same-sex couples, while providing them to opposite-sex couples.

        1. Justice Harlan was saying that the Court must give meaning to the words of the 14th Amendment, in light of the facts before it in Plessy.

          “The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant race — a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens. That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.”

          One can argue that “originalism”, applied consistently, as I believe Harlan did, would have stricken the Loousiana law. Souter seems to say that only by deviating from originalism could the Court have reached the “correct” interpretation of the 14th Amendment, as it applied to separate but equal. That is simply incorrect, as Harlan’s words makes clear.

          AS an aside, if you read Harlan’s dissent, you will note that he is quite a racist. But, he’s an originalist racist.

          1. I don’t see the racism from Harlan. Quote?

            1. Its in there.

            2. I presume you’re referring to:

              “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.”

              1. Of the discussion of the Chinese, I suppose.

                1. Yeah, I think the first one is a bit racist. The second is more a statement of reality; the current state of the law.

        2. Well? The Fourteenth clearly did not. There was no effort to remedy discrimination on the basis of sex with the Reconstruction amendments; suffragettes of the time explicitly complained about it.

          The useful thing about originalism is that when you amend the Constitution it stays amended. Maybe you have to pass a 19th Amendment, but you won’t get a bunch of originalist judges supporting some cockamamie separate-but-equal voting rights theory, either.

          1. Uhm, like, Prohibition, dude?

            1. Uhm, like, Prohibition, dude?

              It had to be overturned by Amendment.

        3. What’s your point … The 14th gives males (black and white) the right to vote if 21. Did not give women that right, that was later. Marriage is for the protection of children that may result from Man/Women union, same sex unions do not give the state children. I do not see the point you are trying to make … if the population want same sex unions we can pass an Amendment.

  12. Like the Right to Privacy, the Right to Self Defense is not WORDED as such for “originalists” to read in abbreviation.

    The problem with Originalists is they pick and choose “original intent” based on their religious worldview.

    Scalito/Thomas loves them some Self Defense – but Privacy? Not so much.

    (I support both sets of rights – naturally)

    1. Looks like you have not read Thomas’ dissent last month in the federal civil comminttment cases? Not unsurprisingly, Justice Breyer authored the supremes’ opinion overturning the Court of Appeals’ decision which threw out a federal statute authorizing post sentence civil committments.

      1. shrike-

        Just convert to anarcho-free enterprise-individualism. You’ll get to rag on Scalia and Souter.

    2. Umm, in case you don’t know, the articles and the first ten ammendments have a set of explainatory documents called the Federalist Papers. Your implication of Seperation of Church and State (not in the Constiution) runs headlong into “shall creat no law restricting the free exercise of religion”.

      Try reading what the folks who wrote the Constitution wrote and you’ll see their intention was not to seperate the church from the state, but rather to keep the state from running (establishment clause) the church (as was often the case in Europe). In other words, it was put into protect religious freedom, not squash it!

      1. Alexander Hamilton, James Madison, and John Jay do not equal the whole of the framers of the Constitution.

        1. Well, you’re quite correct.

          However, if you exclude Jefferson and look at the background of the other Framers, I think it reinforces JT’s point. An extreme minority of the Founding Fathers were Deists, even though they were the most famous.

          Just look at how many of the original signers of the Declaration of Independence and the U.S. Constitution were theologians….

          1. My apologies. Reinforces Rocky’s point =)

            1. And regardless, what the framers thought was meaningless. The words on the page have meaning; intentionalism is a fallacy.

      2. You’re not doing anything to help these guys with this boilerplate theocratic crap. I’m pretty sure the two religion clauses indicate that the separation goes both ways. Also the Federalist Papers aren’t law. And Scalia can’t read the minds of people long dead even though he claims he can.

        1. It was expected that the people would
          listen to their church, but more to the point read your state constitution … every state has a constitution that explains the purpose of the state government, those that were established before and after the federal government. The purpose of the state is to protect the rights & blessings given by God to the people. We are a nation made up of states that serve God.

          1. That would seem to violate the equal protection of atheists like me. Fuck your imaginary friend.

          2. Yes, go fuck yourself. Preferably in the anus.

      3. Library of America, two volume set, “The Debate on the Constitution”, advertised frequently on Hit & Run.

        There wer hundreds of Framers

        1. “were”

    3. [sniff…. sniff… SSSSNNNNIFFFFFF]

      Aw, dammit, did somebody step in something? Take your damn shoes off before you track that shit all over, wouldja?

    4. People have a right to a paid vacation. I know this because I am a batshit insane liberal.

  13. In Plessy, the Supreme Court upheld a Louisiana law that forbid railroad companies from selling first-class tickets to black customers. That law was a blatant violation of economic liberty under the 14th Amendment and should have been struck down as such. That the Supreme Court failed to do so isn’t an indictment of originalism, it’s an indictment of the justices who failed to take the Constitution at its word.

    Kinda sounds like what they call a “living Constitution.”

  14. Don’t you just love Progressive thinking. I mean, the argument against ‘origionalism’ isn’t by looking at the origion (in this case the 14th amendment) but rather at the first case that actually produced judicial activism in the wrong direction.

  15. As I read this, my immediate thought was that I guess Souter never read Justice Harlan’s fantastic dissent in Plessy.

    One need look no further to see one intellectually honest man stating what any integrity knew was being done by the Court there:

    “In respect of civil r ghts, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. … I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.”

    He then comes right out and says “Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of commodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute, is that it interferes with the personal freedom of citizens.”


    “It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a state can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street, and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road or street? Why may it not require sheriffs to assign whites to one side of a court room, and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the state require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?”

    Souter really is a disingenuous fuck, isn’t he?

  16. Congress, in August of 1789, re-affirmed the Northwest Ordinance, which established a prohibition on slavery in certain Federal territories. Nobody at the time thought, when the Fifth Amendment was passed by the same Congress in September of that year, that said amendment would overturn said prohibition. The original understanding was that there was no contradiction between the two.

    But in Dred Scott, the Taney Court, hoping to solve a great crisis that had embroiled the nation, created a brand new theory of interpretation that somehow did require that slavery be allowed in all Federal territories.

  17. Among those privileges or immunities is the right to economic liberty.

    That may be commonly accepted among libertarians, but that’s not the case elsewhere. Without that premise, the whole Originalism vs. Plessy argument falls apart. I agree with the premise, but it shouldn’t be presented as an undeniable Constitutional fact. Just as the “Right to Privacy” is also not an undeniable fact. There will always be Borkian style contention with rights that aren’t explicit.

    1. We hold these truths to be self-evident . . . . .

    2. But it is an historical fact that the framers had a unitary conception of rights. The bifurcation of rights completed by the New Deal court, see Carolene Products, West Parish Hotel, etc., would be nonsensical to the overwhelming majority of the framers.

      The protection of private property, liberty of contract and free enterprise was the raison’d’etre of government for Adams and Madison. Pretty freakin fundamental.

      There is one Lochner era case which has not been overruled-Meyer v. Nebraska. Many courts, including the Supremes, include the Meyer case in their enumeration of cases in which the SCOTUS has premised its decision on 14th amendment substantive due process grounds in striking down state statutes.

      In Meyer, libery of contract is icluded as a right protected by the 14th.

    3. When you get right down to its core, the primary purpose of replacing the Articles of Confederation with a new Constitution was: commerce; improved ability to engage in it. I.e., economic freedom. They wanted to be able to make more money by engaging in free and regular commerce and make the various states stop engaging in their provincial economic protectionism.

    4. Amendment 9 – Construction of Constitution. Ratified 12/15/1791.

      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    5. Amendment 10 – Powers of the States and People. Ratified 12/15/1791.

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      1. Or economic liberty isn’t even that important for Plessy to come out the other way… remember the equal protection clause?

  18. At least with Textualism and Originalism you should have a good degree of consistency. You never know what you’ll get disciples of the living constitutions or conservative pragmatists.

    1. Not necessarily. Neither offer a clear guidebook for how to address rights which aren’t explicitly stated. Barnett’s “Premise of Liberty” is a reasonable guide to use, but it’s far from being universally accepted.

      1. Well, in a current case pending in the Suffolk County Superior Court (Massachusetts), counsel for the defendant limousine company is using professor Barnett’s Presumption of Liberty in support of his 9th amendment argument assailing the constitutionality of Massachusetts’ independent contractor statute.

  19. You’re correct about Plessy. But Souter’s larger point about Brown v. Board is technically correct: there is no way that an originalist reading of the Constitution strikes down public school segregation, as there’s no economic liberty aspect to it. You’ve totally ignored that fact.

    Now, put me on the Rand Paul loony wagon, but I think Brown was one of the more terrible SCOTUS decisions in history, since it opened up the floodgates to “living Constitutionalism” and results-based jurisprudence. I obviously think segregation was a stupid and immoral policy, but it should have been ended a different way.

    1. The case should have been decided upon either the privileges or immunities clause of the 14th amendment of under Articel IV’s p & i clause. You are right in that it is not an economic liberty issue; however, it is a liberty issue nonetheless: The right to be free from Jim Crow.

      1. Unfortunately, the broadest definition of “Liberty” is anarchist in nature, and thus provides no value in courtroom exercises of bright line drawing.

      2. Explain how the P&I clause is going to prohibit school segregation, without introducing the doctrine of “separate is inherently unequal” that underlies Brown.

        1. How about “separate is inherently unequal”? How about “forced separation inherently involves arbitrary distinctions that inevitably deprive some citizens of the full exercise of their civil rights”? How could any fair reading of the original P&I clause of Article 4 include a conclusion that establishing arbitrary classes of citizens by states is legitimate?

        2. One has inherent immunities and rights. Like being immune from state action creating and enforcing Jim Crow.

          Now that I think of it, there are economic liberty issues involved. For example:

          Its 1893 and we, you, me and A.R.T.-POG, are in New Orleans. We have purchased a controlling interest in a holding company the principal asset of which is Crescent City Railroad. We decide that effective September 1, 1893, the railroad will no longer operate as a race segregated transportation company. We do not publicize the change in policy preferring to advise our negro patrons of the change as they purchase tickets and board the trains on September 1st.

          Then, on September 1, 1893, a white patron boards a Baton Rouge bound train only to discover that there was a young black man seated in the whites only car. The white patron, a matronly woman of 40, gasps and sighs and walks towards one of the ushers.

          She asks the usher to remove the young black man from the whites only car. The usher informs her that, “this isn’t a whites only car, mam.”

          The woman does not believe what she just heard. “Sir, what did you say?”

          “This car is not reserved for whites only. By order of the railroad.”

          The woman then demanded to see the conductor…..

          Cops are called.

          The state of Louisiana threatens criminal prosecution and to shut down our railroad. If the state did so, or tried to do so, it would be invading the province of our privileges and immunities. One such immunity is the right to operate a business free from Jim Crow.

        3. Meh; I’ve always felt a tenable argument is simply that there is an obvious element of intention implicit in a facially explicit race-based classification. From there, it’s an easy argument to make that the equal protection clause has to ban such classifications because any explicitly racial classification is made with an intention to classify based on race, thus violating color-blindness. It’s a very circular argument, of course but much more satisfying than dubious social research.

        4. Regarding using the P&I clause to prohibit school segregation, Earl Maltz wrote a bit on this.

          He argues that the original understanding of P&I included a prohibition on taxation if the monies were to be spent on services/projects, etc from which the taxee could not benefit.

          He contends that P&I would have allowed de jure segregation as long as the money spent towards institutions that segregated was not taken from the excluded class.

    2. I’m always surprised to see the vast array of libertarian defenders of Brown.

      1. Brown, like the Civil Rights Act, is one of those third-rail topics that (a) has been rendered totally moot by the passage of time, and (b) people have a strong emotional connection to and thus are NOT going to give fair consideration to an unorthodox POV.

        As Rand Paul found out, it’s better to say as little as possible about such topics. My anonymity on this blog is the only reason I bring it up.

    3. You’re correct about Plessy. But Souter’s larger point about Brown v. Board is technically correct: there is no way that an originalist reading of the Constitution strikes down public school segregation, as there’s no economic liberty aspect to it. You’ve totally ignored that fact.

      Racial segregation violated equal protection.

  20. First of all, I’d like to say that the constitution is a living document, but not for the reason Souter et. al. say it is.

    It’s a living document because there’s this process we have, but never use any more (maybe Reason can do an article on this one day?): It’s called the Amendment Process.

    We make Amendments to the constitution to change Original Intent or even Original Meaning. Unfortunately, to the dictatorial mindset of the Progressive, the Amendment process gets in the way of progress.

    1. I disagree. It’s a living document because of the Ninth. Conservatives don’t like that because it means that the “Evolution of Standards” is Constitutional. Liberals pervert the Ninth by applying Positive Rights.

      1. Understood, but that’s just semantics.

        We can amend the constitution to give the federal government new enumerated powers. We just don’t do it anymore. Because it’s hard.

        And it was supposed to be hard.

        1. It’s not hard if there is a real public consensus on an issue.

          1. Yeah, if you have real public consensus. When was the last time we had real public consensus on anything?

            1. Well, from 1789 to 1992, there was a bubbling up-swell resulting in Amendment XXVI.

              But I think that’s my point; there is real public consensus when there is an amendment.

      2. I disagree. It’s a living document because of the Ninth. Conservatives don’t like that because it means that the “Evolution of Standards” is Constitutional. Liberals pervert the Ninth by applying Positive Rights.

        The Ninth protects what liberties were generally recognized at the time of ratification.

  21. After reading this, I read Souters remarks in full.

    You can find them here: http://news.harvard.edu/gazett…..rs-speech/

    After reading that, I think the debate over this example misses the larger point

    His words

    “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. ”

    **By “read fairly”, he is referring to strict constructionism/originalism.

    This is a fair basis for argument against strict constructionism and originalism more broadly…that ambiguity is unavoidable and was intended by the framers to be resolved by future generations.

    1. His statements don’t provide any clarity or insight– at least to me.

      Take this:

      We want order and security, and we want liberty. And we want not only liberty but equality as well.

      It seems to me that there are many explicit statements in the constitution which favor liberty over security and equality.

      The constitution does provide for equality under the law, but doesn’t say a damned thing about equal outcomes.

      Then this:

      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. “

      …is the kind of thing that makes me nervous.

      Which of our “approved desires”? Maybe I’m being too harsh on Mr. Souter, but right after 9/11, our “approved desires” were teetering dangerously close to repealing the bill of rights– or at least ignoring them. The originalist meaning transcended panics and scares, and are designed to protect us from that sort of populism.

      1. I agree with both your comments. it is ironic, though, that it’s the “originalist” and “constructionalist” wing of the court that rules most often in favor of the state and/or against the protection of individual rights. It seems to me that there is a pattern emerging where the so called activist judges are the ones more likely to show restraint.

        Either the labels or the expected outcomes are misplaced

        1. it is ironic, though, that it’s the “originalist” and “constructionalist” wing of the court that rules most often in favor of the state and/or against the protection of individual rights.

          And I have no answer to this whatsoever.

          I see the problem in that the court is largely packed with people who fall under the traditional Red/Blue divide.

          I’m not prepared to hash this out here, but there doesn’t seem to be a particualarly strong libertarian showing on the court; one that isn’t ready to trump freedom in favor of security and control, or assert positive rights at the expense of individual liberty and freedom of association.

          1. I think this can be linked back to the original post by Mr Root. It is a mistake to label Souter an activist judge. I think Justice Souter could accurately be called a judicial conservative. He rarely, if ever (afaik), joined an opinion to overturn precedent. Reluctance to overturn precedent is not “activist”.

            He appeared to be “liberal” to Republicans because many of the precedents he followed were in the long wake of the Warren court. It made him an enemy of Republicans, but hardly a judicial activist.

            In fact, he claims that the case that made him most disgusted with the court was Bush v Gore, because it granted the federal government new authority at the expense of Florida with no precedent to back it. Its the case he says that made him determined to resign.

            It is in this light that I take his argument. And at some point, originalism has to account for and reconcile settled precedent with the case at hand. This is exactly what Souter’s essay and record demonstrate.

            As far as the red/blue divide goes, I agree its best left for another debate. But that divide has clearly gone a long way towards making definitions of activist/originalist etc.. almost useless outside a libertarian comment thread.


        2. it’s the “originalist” and “constructionalist” wing of the court that rules most often in favor of the state and/or against the protection of individual rights.

          This trope gets repeated over and over, but it doesn’t hold water.

          Thomas sided with medical marijuana patients in Gonzales vs. Raich, against defender-of-civil-rights John Paul Stevens.

          Thomas and Scalia both sided with homeowners against the New London government in Kelo v. New London.

          Scalia sided against the Bush administration in Hamdi v. Rumsfeld, the Gitmo detention case.

          And that’s before we get to the Citizens United case and Heller v. DC, where both Scalia and Thomas supported individual rights while the liberals sided with the government.

          1. Although he was not considered an originalist, Rehnquist’s record reflects that if the controversy concerned an individual and either a state or the feds, the individual lost almost all of the time.

            1. Throw in some silly 1st amendment jurisprudence…

  22. The U.S. Constitution IS a living document. It was designed to be changed through AMENDMENT. e.g. If the majority of Americans feel that healthcare is a universal right of all Americans, then the majority of Americans have the right to amend the constitution to make it so. The problems comes when lawmakers and judges circumvent the constitution to accomplish things the plurality of Americans don’t agree with.

    1. This is what tickles me about this debate… if the constitution is so great, why did it so quickly fail to provide the type of society you guys claim it requires?

      I mean it provides for legislating and courts. A system has developed to review the constitutionality of legislation. According to you that system has been fundamentally corrupt the entire time. Some constitution.

      Things aren’t unconstitutional just because you say so. You and I can disagree with policy and court decisions all day long, but in the end constitutionality is determined by the system itself.

      I am now forced to admit that people are constitutionally allowed to own guns for self-defense, even though I disagree with that interpretation and ruling.

      1. This is what tickles me about this debate… if the constitution is so great, why did it so quickly fail to provide the type of society you guys claim it requires?

        Because as the great Matt Welch wrote, freedom is a scary thing, especially when exercised by others.

        1. I fail to see the point of wasting one’s life arguing for a type of society that the world has never, ever produced. I mean there could possibly be a measure of expediency that accounts for that fact.

          1. I’m not sure that’s what all of us here are doing, Tony.

            I don’t really see why wanting to keep the scope and power of government to a minimum is “wasing one’s life”. Especially when overreaching governments are the source of almost every ill in society. And I’m not trying to say that nothing good has come from powerful centralized government. I’m merely pointing out that much bad has definitely come of it.

            Again, Tony, yes, we do argue a heavy theoretical beat here and to be sure, there’s a boatload of hyperbole– but I for one believe that we can achieve a more prosperous, safer, freer, more egalitarian society with a much smaller government and way lower taxation, and still not have to repeal food safety laws and earthquake building codes.

            1. Food safery laws make us sick.

            2. I’m pretty sure we’re all fucked anyway, but one thing I know for sure is we’re really fucked in a laissez-faire, low-tax situation. Any slight movement in that direction always produces ridiculous amounts of misery. The expediency I refer to is the fact that your economic policies inevitably lead to more people being more poor, and as long as those people have a vote they don’t stand for it for long.

              1. The expediency I refer to is the fact that your economic policies inevitably lead to more people being more poor,

                And your problem with that is…

              2. “but one thing I know for sure is we’re really fucked in a laissez-faire, low-tax situation. Any slight movement in that direction always produces ridiculous amounts of misery.”

                You cannot be saying this with a straight face, Tony. Have you, you know, ever studied history? Ever?

                Here’s the socialist economist Robert Heilbroner in 1992 after his “awakening” to the truths of economic organization:

                “Capitalism has been as unmistakable a success as socialism has been a failure. Here is the part that’s hard to swallow. It has been the Friedmans, Hayeks, and von Miseses who have maintained that capitalism would flourish and that socialism would develop incurable ailments. All three have regarded capitalism as the ‘natural’ system of free men; all have maintained that left to its own devices capitalism would achieve material growth more successfully than any other system. From [my samplings] I draw the following discomforting generalization: The farther to the right one looks, the more prescient has been the historical foresight; the farther to the left, the less so.”

                It boggles my mind that otherwise intelligent people like yourself- skeptics, scientists, atheists, etc. are so often blind to this obvious trend of history.

      2. We’d be better off if we had fewer rights.

  23. I think this quote from Julian Sanchez encapsulates my misqivings about placing too much trust in strict ideology, in particular regaring the Civil Rights act and Brown,

    “We libertarians, never burdened with an excess of governing power, have always had a utopian streak, a penchant for imagining what rich organic order would bubble up from the choices of free and equal citizens governed by a lean state enforcing a few simple rules. We tend to envision societies that, if not perfect, are at least consistently libertarian.

    Unfortunately, history happened. Rules for utopia can deal with individual crimes?the mugger and the killer and the vandal?but they stumble in the face of societywide injustice. They tell us the state shouldn’t sanction the brutal enslavement or humiliating legal subordination of a people; they have less to say about what to do once we have. They tell us to respect the sanctity of the property rights that would arise as free people tamed the wilderness in John Locke’s state of nature. They have less to say about the sanctity of property built on generations of slave sweat and blood.

    Libertarians need to think harder about how our principles should degrade elegantly, how they can guide us through a fallen world where the live political options seldom afford a full escape from injustice. “

    1. I don’t actually think it’s that hard. I mean, every brand of politics has its theoretical beat.

      For instance, a serious libertarian presidential candidate doesn’t have make repeal of food safety laws part of his campaign platform.

      A politician of any political stripe can take the thrust of his beliefs as guiding principle, and go from there.

      Favor liberty over strict control.
      Understand that all outcomes won’t be perfect.
      A flourishing free market doesn’t mean ever-rising prices.

      I mean, we can certainly see these guiding principles in other political stripes.

      A market unregulated is to be held in suspicion.
      Everything must be systemized.
      Placing institutions between people better protects society.

    2. There is no such thing as “societywide injustice” as only individuals can act.

  24. Things certainly would be much simpler – and more enjoyable – if I were the All-Being Master of Time, Space and Dimension. Then everyone would just have to do what I say and live by my rules. As long you live on my planet, you’ll live by my rules, young man.

  25. Not only that, but Souter’s revisionism re the importance & rationale of Plessy at the time is offensively ignorant:

  26. Although I admit that judging motives is a risky proposition, I’ve always believed that the Warren Court chose an expansive reading of the 14th Amendment because the wanted to leverage the Brown decision into other areas of the law – and to make a moral statement. A Brown decision that turned on contract law alone would desegregate the schools, but does not provide as much moral force – and capability for legal expansion – as does a decision based on “equal protection under law”, a concept that can be expanded into any area desired by any judge. I admit I may be in error, but given the propensity for Left-leaning judges to use what ever means are available to accomplish predetermined ends, I don’t believe my conclusions are unreasonable.

    1. I haven’t studied the motivations and writings of the members of the Warren court that issued the Brown decision, but I’ve always believed that two factors had overriding significance in choosing the grounds for the decision: a political desire for unanimity, and a judicial desire for maximum deference to stare decisis. These factors, especially the respect for stare decisis, meant that the justices had to find a reason why Plessy was no longer valid, rather than simply overruling Plessy. It seems quaint in this day, but in the 1950s, I think that stare decisis was generally considered to be more binding than current political intentions or valid legal reasoning.

      Anyway, if I’m right, the court had to find a reason to overturn Plessy, and found it by deciding that separate was unacceptable because it had measurable bad effects on an identifiable population, not because it was an affront to the language and intent of the constitution. Unfortunately, this led to the legal principle that any policy that has bad effects for an identifiable population is constitutionally suspect. But, it turns out, only if the population involved is a “protected” class. Which led to such curious situations as treating school children as public assets, to be used for public purposes regardless of the desires of the parents, or even the effects on the children involved.

      1. I don’t deny that Earl Warren wanted the court to speak with one voice on the Brown case. However, a decision based on the narrow grounds of contract violation is (was) far more likely to command a unanimous verdict than an expansive decision based on the equal protection clause. It is known that Justice Frankfruter and one other justice were very unhappy with the reasoning Warren used in his decision. It was rumored that the two planned to dissent, but agreed to go along with Warren in order to present a united front on this issue. And if stare decisis were of any concern to Warren, he would have spent more time arguing why Plessy should have been overturned, rather than larding his decision with arguments about the effects of de jure segregation on the hearts and minds of black children. Lets be honest, legal segregation had to end. If the idea of separate but equal ever had any validity, that time was long passed. It simply could not be maintained after WWII. Warren knew that; and I suspect he knew that other cases of a similiar nature would wind their way to the SC. He wanted to make a moral statement. His decision reads like that. The arguements are a condemnation of dejure segregation and very little more than that.

  27. “reply to this” virgin P Brooks

    That’s “reply to this” refusenik, to you.

  28. Souter spent 20+ years on the Supreme Court writing irrelevant concurrences and using jurisdictional and procedural pickiness to avoid getting to the substantive issues in the relatively few majority opinions he did write.

    And now in retirement he decides to start channeling the ghost of Earl Warren. Brilliant!

    I think both left and right wings miss the primary purpose of the Constitution, which was to provide a functional blueprint for the federal government and to create strict limits on its scope and power. Politicians of all stripe (including some Supreme Court justices) conveniently ignore the purpose of Constitution when it suits them.

    It’s probably true that the Civil War amendments distorted the original constitutional regime by getting away from this ‘structural’ purpose. Nevertheless, I believe it’s still possible to interpret the Constitution to be consistent with its original purpose and understanding, while not adhering to the uglier social and cultural views of the Founders. The Founders’ distrust of government power, particularly of concentrated and centralized power, is just as relevant today as it was in 1787. IMHO, any constitutional analysis must take that into account.

  29. Think how much more fun it is to be a Justice like Souter who gets to do whatever he feels like doing rather than one constrained to work within the framework of the Constitution? How much more fun, and dangerous to the nation!

  30. What disturbs me most about the “living constitution” theory is that it means there is no objective baseline. If rights and privileges can be created or destroyed according to the mores of society at the time, is there anything the Constitution cannot be used to support?

    What if the country had swung fascist in the late 30s? The originalist position would not change, but the “living constitution” proponents would be stretching to show that the Constitution is in accord with fascist principles.

    1. The courts do just that now and they did it in the 1930s too.

    2. You make a very valid point which to me illustrates why I the constitution is a living document. Although dates change and technology change, nothing is actually new under the sun and is therefore reducible to its lowest denominator which always ask the question–is this the set of facts? What is the law as it pertains to such facts?

      Clearly our polticial, legislative and judicial systems are absent of the checks and balances the Framers intended. We the people are being ruled by a class of poltical and industrial hacks who have colluded to keep the masses un-informed, distracted and divided, as they run off with the wealth of our Nation.

  31. If the Constitution means whatever five unelected officials says it does, then we have not a government of law but of man and woman.

    1. Who else is gonna say what it means? You? Congress?

      1. The Court gets to say what it means, but they are not free to invent whatever meaning for the words of the Constitution which fits their fancy. Judging Framers’ intent leads to valid decisions, regardless of the Justices’ personal opinions.

        Congress can change the law if they want, as one means of amending the Constitution. It contains legislators, not the Court.

  32. About time this point was made by someone! “Separate but equal” was created single-handedly by the Supreme Court and this concept can be found NOWHERE in the Constitution. That the Supreme Court did away with its own creation is not at all an indictment of originalism.

    Indeed it illustrates the folly of an evolving Constitution principle, where “separate but equal” was a mere evolution of social norms away from slavery.

    Mostly, Souter’s comments evidence an arrogant faith in the Supreme Court. He considers Plessy an “originalist” decision because the Court decided the 14th Amendment’s meaning so close to it’s ratification – so the Court MUST surely have known the original intended meaning.

    But any “fair reading” of the 14th Amendment (as well as the rest of the Constitution’s guarantees of freedom and equal protection) reveals that the Court twisted itself up in order to cater to certain social norms.

    1. John A. Bingham, the main author of the 14th Amendment, was still alive thirty years after he drafted it, along with other members of the Committee of 15, so the Court could have consulted him or others involved in writing, debating & approving it. I don’t know his capacities in 1896, but he served as ambassador to Japan until 1885. The majority in Plessy may not have wanted to ask the Radical Republican drafters what their intention was, had doing so even occurred to them. Souter’s presumption of familiarity is probably unwarranted. In fact, times may have so changed that the last thing the Court wanted to do was seek original intent.

      1. Meh; none of that is important; whatever Bingham intended is meaningless. What is important are the words on the page, nothing more.

        Original intent is so debunked as a theory as to be a joke. It’s original meaning these days.

        1. Words on the page can be twisted to mean anything, and have been.

          Creative jurisprudence, finding emanations of penumbrae where none exist, must be restrained by discovering what the Framers intended.

          There are no laws is the law is whatever five judges say it is.

  33. The Constitution is an altogether FAILED attempt to protect the rights of the people. That is all.

  34. I absolutely concur with the conclusion of the article, I would just add that I believe that Justice Souter is not only wrong in his assertion that the “original intent” is out of date and could would not have over turned Plessy. To the contrary, The Federalist Papers, articulate the acknowledgement of the institutionalization of of second class citizenry to African people, however it is clear that the consolidation of the “states” was of paramount importance and as such, equality for the slave would have to wait. That is read in the musings of Jefferson when he writes, “I tremble when I reflect that GOD’ justice will not sleep forever”,(or something like that.

    I think that same sentiment could be ascertained by the proclamation, “We, the people…in order to form a more perfect union”–which in my mind projects again the acknowledgment that this document, though executed imperfectly from time to time (wise men will not always be at the helm)–is as much a timeless blueprint (like the bible)as it is a living, progressive document. I don’t think the two are mutually exclusive.

    I further believe that the gentlemen who wrote these documents over two hundred and thirtysomething years ago were brillant and I have the highest regard for them. They, unlike the political class of today, were of the Aristocratic class–where education, culture and refinement were key attributes of social distinction. These “statesmen” having cut their teeth on the “old” and “great” masters of the classical world were better suited to the task of social organization than all of the psuedo politicans and intelligensia currently in vogue. In fact, I trust the judgment of “The Framers” more today than ever. The intellectual capital of the ruling class of this society is just not in the same class.

  35. Souter is saying that Plessy was correctly decided according to the “Living Constitution” of the time! That’s right: Souter is, in effect, _defending_ Plessy… and, for that, he gets praised by E.J. Dionne.
    (Yes, liberals really _are_ morons.)

  36. Originalism is all this nation really has between the rule of law or the tyranny of man. The difference of interpretation, case law and precedent is digression and any attempt to ‘read into the constitution ‘unenumerates or penumbras’ is merely man’s attempt to bastardize the law for his own gain. Why do you think it’s so important to properly vet nominees for such a position?

  37. The problem with the “living document” approach is that you don’t have rule of law, instead you have rule of opinion.

  38. This country belongs to the living. It is not for the framer’s of the constitution to be governing from beyond the grave.

  39. Worth reading, if you’re interested:

    Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947 (1995)

    Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 Va. L. Rev. 1881 (1995)

    Michael W. McConnell, The Originalist Justification for Brown: A Reply to Professor Klarman, 81 Va. L. Rev. 1937 (1995)

    IMO, Klarman (who argues that Brown is not justified by originalism) comes out ahead, but it’s a very interesting read if you’re into this sort of thing.

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