NYT on Souter
Jun. 4th, 2010 02:05 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
libertangoLinda Greenhouse of the New York Times has a blog post reporting a commencement speech to Harvard by former Justice David Souter.
Great stuff all around. I particularly like the echo of my professor Leo Flynn in this passage:
The full text of Souter's speech is available here.
There's the usual grinding of wheels in the comments about "activism" vs "originalism." Here's what I submitted as a comment:
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The existential problem of the originalist position may be put this way:
What if the original intent of the Founders was that the Constitution not be enforced in light of original intent?
Exhibit A in that surmise would be the Ninth Amendment, which reads in full, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In other words, to the complaint of the literalists that, "Show me where in the Constitution a right to such-and-such exists," the Founders, through the Ninth Amendment, say, "It doesn't matter." So concerned were the Founders about the possibility the literalists might prevail that many states refused to initially consider the Bill of Rights until the Ninth Amendment was added, precisely because they didn't want liberty constrained by black letter text..
That sets up the basic conflict: If you're a literalist, you have to take the Ninth Amendment into account; but the Ninth Amendment repudiates literalism.
This is probably why Robert Bork famously tried to sweep the Ninth Amendment under the rug as a, "Rorschach test." The literalists and originalists find the only way to reconcile their views on the original text of the Constitution is to ignore the original text of the Constitution.
Accordingly, Antonin Scalia is probably the most "activist" voice in the judiciary today. And how ironic is that?
UPDATED TO ADD: It appears the Times axed the comments they already had in hand, and now simply say, "Comments are not being accepted for this post." I've been noticing how whether they accept comments on any given piece has appeared to be random. This is the first time I've noticed them both turning them off and removing the existing ones, though.
Great stuff all around. I particularly like the echo of my professor Leo Flynn in this passage:
The Supreme Court may serve no higher function than to help society resolve the “conflict between the good and the good,” (Souter) suggested: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 full text of Souter's speech is available here.
There's the usual grinding of wheels in the comments about "activism" vs "originalism." Here's what I submitted as a comment:
*^*^*
The existential problem of the originalist position may be put this way:
What if the original intent of the Founders was that the Constitution not be enforced in light of original intent?
Exhibit A in that surmise would be the Ninth Amendment, which reads in full, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In other words, to the complaint of the literalists that, "Show me where in the Constitution a right to such-and-such exists," the Founders, through the Ninth Amendment, say, "It doesn't matter." So concerned were the Founders about the possibility the literalists might prevail that many states refused to initially consider the Bill of Rights until the Ninth Amendment was added, precisely because they didn't want liberty constrained by black letter text..
That sets up the basic conflict: If you're a literalist, you have to take the Ninth Amendment into account; but the Ninth Amendment repudiates literalism.
This is probably why Robert Bork famously tried to sweep the Ninth Amendment under the rug as a, "Rorschach test." The literalists and originalists find the only way to reconcile their views on the original text of the Constitution is to ignore the original text of the Constitution.
Accordingly, Antonin Scalia is probably the most "activist" voice in the judiciary today. And how ironic is that?
UPDATED TO ADD: It appears the Times axed the comments they already had in hand, and now simply say, "Comments are not being accepted for this post." I've been noticing how whether they accept comments on any given piece has appeared to be random. This is the first time I've noticed them both turning them off and removing the existing ones, though.
