I recently saw a reference to a speech given at Harvard’s commencement in May of this year by David Souter. Justice Souter served in the US Supreme Court from 1990 until he stepped down in June of 2009. He was appointed by President George H. W. Bush and was expected to be a conservative-leaning justice, but over time he moved toward the center and was part of the more moderate-liberal wing of the court.
The Harvard commencement address is truly a lesson on why our short and relatively simple US Constitution, drafted more than 200 years ago, continues to be such a powerful document when properly interpreted and applied in our very different and continuously changing society. I will quote extensively from his speech because I could not possibly come up with words as powerful and eloquent as his, but I urge you to read it here.
In simple language, Justice Souter explains why originalism, textualism and similar legal principles based on using the Constitution only to establish the fair reading or original meaning of its authors without imposing any additional interpretations just plainly do not work. He directly addresses the “criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties.”
There are cases where such a straightforward, fair reading model makes sense. For example, if a 21 year old wants to run for the US Senate, a simple reading of the Constitution would say that this is forbidden because a senator must be at least 30 years old.
“But cases like this do not usually come to court, or at least the Supreme Court. And for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.”
“Even a moment’s thought is enough to show why it is so unrealistic. The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.”
“But this explanation hardly scratches the surface. The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony.”
What I found particularly intriguing in the speech is that it appears that Justice Souter is using arguments somewhat similar to those that people like me who study complex systems would use to explain why the dynamic nature of their components and their intricate relationships make such complex systems intrinsically unpredictable. There are clearly problems whose answer we can predict. If a car is moving at 50 miles an hour toward a destination 25 miles away and there is no congestion on the roads, we can predict that it will take about 30 minutes to reach the destination.
But those are not the complex systems problems that baffle us. If you want to predict how the stock market will be doing a year from now, let alone an individual stock, we are on much shakier ground. If you want us to tell you whether the New York Yankees will win the World Series in 2011, we might be able to give you some decent probabilities, but it will be hard to do much better. If you asked us what the traffic in midtown Manhattan will be like at 2 pm next Wednesday, so you know whether to drive or take the train, once more we have to rely on probabilities and judgment.
It is not surprising that Justice Souter’s argument – “constitutional judging is not a mere combination of fair reading and simple facts” – brings to mind the unpredictability of complex systems. In fact, what we are judging is one of the most complex systems imaginable - a large, fast changing nation and society. To think that a set of powerful, general principles can guide the judging feels totally reasonable. To think that the exact words written in the second half of the 18th century can tell us what to do in the beginning of the 21st century defies comprehension.
Justice Souter illustrates his views that the fair reading model is unrealistic with two stories of two great cases. The first concerns the Pentagon Papers, which is particularly timely given the issues surrounding WikiLeaks.
The Pentagon Papers is the name given by the press to a cache of top-secret Department of Defense documents detailing the history of the US involvement in Vietnam from 1945 to 1967. For many, the Pentagon Papers were proof that the Johnson Administration lied to the nation and Congress to justify its escalation of the Vietnam War. The New York Times and the Washington Post obtained copies of these classified documents and intended to publish them. The government sought a court order forbidding the publication. The case went to the Supreme Court in June of 1971.
This case was a clash of two powerful and irreconcilable principles. One was the First Amendment - “Congress shall make no law … abridging the freedom of speech, or of the press,” the argument used by the Times and Post to justify publication. On the other side, the government argued that publication threatened irreparable harm to the security of the US, put lives at risk and jeopardized the process of ending the war and freeing US soldiers imprisoned in Vietnam.
Arguing the government’s case was Erwin Griswold, who had previously been Dean of Harvard’s Law School. His key argument was that while the First amendments words were literally clear – “Congress shall make no law … abridging the freedom of speech, or of the press” – the First Amendment was not the whole Constitution. The Constitution included other sections in which it granted the government authority to provide for the security of the nation. In his speech, Justice Souter said:
“The government lost the case and the newspapers published, but Dean Griswold won his argument . . . And although he failed to convince the court that the capacity to exercise these powers would be seriously affected by publication of the papers, the court did recognize that at some point the authority to govern that Dean Griswold invoked could limit the right to publish. The court did not decide the case on the ground that the words “no law” allowed of no exception and meant that the rights of expression were absolute. The court’s majority decided only that the government had not met a high burden of showing facts that could justify a prior restraint, and particular members of the court spoke of examples that might have turned the case around, causing the decision to go the other way. Threatened publication of something like the D-Day invasion plans could have been enjoined; Justice Brennan mentioned a publication that would risk a nuclear holocaust in peacetime.”
“The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary. 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. And choices like the ones that the justices envisioned in the Papers case make up much of what we call law.”
The second case brought up by Justice Souter was Brown v Board of Education, the 1954 landmark decision in which the Supreme Court unanimously ruled that state laws establishing separate public schools for white and black students were unconstitutional. He pointed out that in a 1896 case, Plessy v Ferguson, the Court had ruled that separate-but-equal was OK, upholding state laws requiring black people to ride in separate railroad cars. Why he asked, were separate-but-equal laws constitutional in 1896, but not sixty years later?
“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? The language of the Constitution’s guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be hard to say that the obvious facts on which Plessy was based had changed, either. While Plessy was about railroad cars and Brown was about schools, that distinction was no great difference. Actually, the best clue to the difference between the cases is the dates they were decided, which I think lead to the explanation for their divergent results.”
The answer, Justice Souter said, is that in 1896 people still remembered the days of slavery, and compared to slavery, separate-but-equal was huge progress. But, by 1954, slavery was already a bad, historical memory. By 1954, the focus could no longer be segregation versus slavery, but whether segregating the races by law was fair. “And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race. The judges who understood the meaning that was apparent in 1954 would have violated their oaths to uphold the Constitution if they had not held the segregation mandate unconstitutional.”
“Let me, like the lawyer that I am, sum up the case I’ve tried to present this afternoon. The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. Not even its most uncompromising and unconditional language can resolve every potential tension of one provision with another, tension the Constitution’s Framers left to be resolved another day; and another day after that, for our cases can give no answers that fit all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world. These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments. Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.”
The Constitution is a truly remarkable document - remarkable most notably because it is not a set of rules trying to cover every possible issue the country might face, but rather a general blueprint to help us deal with a complex, emergent system and nation. Based on a few simple but powerful principles, it has given rise to a truly brilliant system of government - and helped create an entire culture and society - which have endured for more than two centuries. It has done so while adapting to the vast changes that the country has undergone during that time, including its massive growth in size, population and power; the vast diversity in the composition of its people; and the highly different political beliefs, social mores and market conditions it has experienced through all that time.
The Framers of the Constitution seemed to have intuitively understood the concepts of unpredictable complex systems and emergent behaviors. They knew that in a growing society of people, one could not possibly anticipate every problem with which the document they were drafting would have to deal. So they relied on future generations of wise men, like David Souter, later complemented by wise women, to constantly rethink and reinterpret the Constitution’s conflicting pantheon of values and thus help the nation navigate its way through an unpredictable and fast changing world.