Souter Rejects Originalism

This is one of my favorite arguments. I think I've referred before to Original Meanings by Jack N. Rakove (New York: Alfred A. Knopf, 1997). Now E. J. Dionne uses his column to bring to our attention a speech given by retired Associate Justice David Souter reaffirming the intellectual poverty of originalism.

Souter gave the commencement address at Harvard this year, and he used that occasion to give a rather important speech on the flaws in the orginalist (or as he called it, "fair reading") approach to constitutional interpretation. One of those flaws is historical. The Constitution is a political document, created over a period of time in a contentious political process, and is not a unified whole, developed in a single, philosophically consistent mind. Therefore, there are tensions among various principles enunciated in the Constitution.

These tensions were based upon the tensions among the fundamental principles whose fulfillment we desire. Dionne quotes Souter as saying that "the Constitution emodies 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." When the French said they wanted "liberty, equality, and brotherhood," or when Jefferson asserted our right to "life, liberty, and the pursuit of happiness," they failed to acknowledge that these aspirations may be incompatible, even conflicted, in practice.

Dionne offers another good essay, and I'm glad he has brought Justice Souter's speech to our attention.