6/6/2010—Former Justice David Souter gave the Harvard Commencement talk this year and his subject was the nature of judicial interpretation of the Constitution (text here). Specifically, Souter was responding to the critical refrain that liberal judges “make up” the law when they announce rules that cannot be found in the Constitution. Souter made a very good case that what he called the “fair reading model has only a tenous connection to reality.”
The basic problem is that the Constitution is a “pantheon of values” that often conflict and that usually have to be interpreted in a current context that has changed since the text was originally written.
Souter went further than that, locating the dispute between two different approaches to interpretation in the difference between “a basic human hunger for the certainty and control that the fair reading model seems to promise” and Souter’s “belief that in an indeterminate world I cannot control, it is still possible to live fully in the trust that a way will be found leading through the uncertain future.” Souter believes the latter is closer to the framers understanding of what interpretation is.
I am in basic agreement with Souter, I guess, though I can hear Justice Antonin Scalia pointing out that when announcing a value that is not “in” the Constitution, the Judge exercises quite a lot of control. Nevertheless, the important thing for me is how secularists tend to ignore Souter’s position when the issue is the establishment of religion. When we get to that subject, all you hear is quite determinative language and history and an argument that the Establishment Clause can only mean one thing.