Dave Hardy has some comments on a recent article speaking ofÂ Justice Souter’s philosophy when it comes to constitutional interpretation. To quote Justice Souter directly:
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.
The problem with this balancing interest is that it leaves entirely too much room for judges to make-up law from whole cloth, using their own preferences rather than being tied to the text of the document. The New York Times went on to note:
Justice Souter named no contemporary names. He did not mention Justice Antonin Scalia, whose â€œoriginalistâ€ doctrine of constitutional interpretation made inroads in recent years, most notably in the 2008 decision, from which Justice Souter dissented,Â declaring an individual right to gun ownership under the Second Amendment. But I have to think he had Justice Scalia in mind when he observed that â€œbehind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair-reading model seems to promise.â€
I don’t think it’s so much a dream of a simpler constitution, and even a textualist is going to acknowledge there are places where the text is less than clear. But where the text is clear, we should follow it. The big problem with Souter’s approach is that it’s hard to see how his balancing test keeps the judiciary constrained to its judicial powers. The kind of balancing of interest that Souter calls for is more properly the realm of Congress, and not the judiciary.
I don’t go as far as some conservatives that suggest the courts should never interfere with theÂ prerogativesÂ of the elected branch. Starting with a default presumption that Congress wouldn’t pass an unconstitutional law is just as much a fallacy as what Souter believes. Where the law is ambiguous, or where Congress’ claims of power are so wildly beyond their constitutional mandate, the courts needs to act. Souter brings up segregation. Segregation should have been outlawed by the 14th Amendment. That wasn’t any evolving constitutional doctrine, so much as a half century of the judiciary trying to escape its clear mandate. I agree with what Dave Hardy says on the matter:
Doesn’t that mean he accepts that Plessey was right when it was decided, “right here, right now,” and became wrong half a century later? I’d rather prefer to think it was wrong and odious from the beginning, for reasons entirely external to the judges…. it just took them half a century to see the light.