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David Souter: How the Constitution keeps up with the times

February 17. 2013 4:31PM

Editor's note: The commentary below is the first in a series on the topic, "How Does the Constitution Keep Up with the Times?" It is drawn from a public conversation between retired U.S. Supreme Court Justice David H. Souter and PBS News journalist Margaret Warner to launch Constitutionally Speaking, a civic engagement initiative aimed at educating New Hampshire citizens about the nation's founding document and promoting the reintroduction of meaningful civics education into state classrooms.

The yearlong pilot project is a collaboration of the N.H. Supreme Court Society, the N.H. Humanities Council and the UNH School of Law. In addition to constitutional interpretation, future commentaries will highlight cases before the U.S. Supreme Court this term, concerning Fourth Amendment protections against unreasonable search and seizure, affirmative action in undergraduate admissions and same-sex marriage.

M. Warner: Thirty- six years ago I wrote that you were critical of what you called broad interpretations of the written law, which you thought threatened public acceptance. So did I have it wrong then, or has your thinking evolved since?

D. Souter: I haven't changed my mind about that so far as that went. The meaning of the constitutional language has not changed with time, but what I said, in effect, left out something very important. And it's really what was left out that I've spent as much time on in the last 36 years as on anything at all. To explain what I'm getting at, let me set a little scene.

We have in a way two elements in the Constitution. One is structural - it constitutes the government. It says what it shall consist of: the President, two legislative houses, an independent judiciary, and so on. There are all kinds of specifications. The President has to be 35 years old, and under the present amendments the inauguration is January 20th. We've also got, call it the "Liberty Constitution." Not only the Bill of Rights, but those portions of the original Constitution that also had the effect of guaranteeing liberty. So there's one sort of dichotomy: structural vs. individual rights.

The other division that you can make in the Constitution is in the language as opposed to the subject matter. The Constitution has a great range of breadth of language. In the structural Constitution, it speaks of commerce among the states. It doesn't define it any more precisely than that. You get into the Bill of Rights and you get terms like "unreasonable searches and seizures," which are prohibited; references to freedom of speech without any further definition; security in people's houses. These general terms are best understood as kind of a listing or menu of approved values, the application of which has got to be worked out over time. They couldn't be worked out at that time. The whole point of it was that it was a Constitution and a Bill of Rights for the indefinite future. It was not like a statute that deals with a specific problem and can be amended relatively easily. The Constitution cannot be amended relatively easily, so the application of these values, the problem of trying to make them work in practice, was an assignment that was left to the future: to all the branches of government, for that matter; to all the people who select the people in those branches; and ultimately - when push comes to shove - to the judicial branch, to the Supreme Court of the United States.

Let's just take speech for a minute. No question, there is a right to freedom of speech, and it is an enumerated right. If you look, however, at how that right was enforced, you will find that the Supreme Court has held that it includes, or it implies, a right to freedom of association. It's a right that is recognized in order to give practical value to the general right of speech. A great deal of what the Supreme Court does, and cannot avoid doing, is trying to figure out how to make these things work. So there are two concepts of rights involved here: one, of the rights that are enumerated from which the court has to work; and the other, of the rights that are recognized in order to make practical sense of what the Constitution says are the values that we are there to protect. The obligation when the Supreme Court or any court is working out this "How do you make it work" kind of problem is to explain why the court makes it work that way; so that it becomes apparent that we're not just putting our own ideas of what might be nice into constitutional language.

M. Warner: But you do not think as some believe - Justice Scalia being one - that you can stick to what he calls the fair reading of the text, which he says is basically what a reasonable reader would understand the text meant at the time of it's adoption?

D. Souter: No, you cannot stick to that. I gave a speech a couple years ago in which I gave an example of why simply reading doesn't do it. That is, if you look at the text of the First Amendment, "Congress shall make no law abridging the freedom of speech" and so on, "no law" sounds pretty tough. But in fact everybody recognizes - conservatives, liberals - there are some laws that Congress can make that in a practical sense do limit the freedom of speech. No one doubts, for example, that if an individual was poised with a microphone in his mouth to divulge America's nuclear secrets that he could be stopped without violating the First Amendment.

Another reason why simply reading is not going to give you answers is that there are constitutionally recognized values that can be in conflict with each other. They both can't win all the way, all the time. The paradigm examples are the guarantees of liberty and equality.

If I exercise my liberty to the greatest possible extent, I can suppress the rights of a lot of people.

An example is the Supreme Court's decision the year after I stepped down on political campaign contributions by corporations - the so-called Citizens United decision.

Should corporations in effect be subject to the limitations on political expenditures that they had been subject to for a century? There was a play of constitutional values going on. If the Supreme Court took a liberty model of free expression, corporations could spend all the money they wanted. If they took an equality model, they would say there's got to be the possibility of a limitation on corporations so that they do not drown out other speech. The Supreme Court in Citizens United went with the liberty model. But these kinds of conflicts in values are simply part of the Constitution. You can't say that you can resolve them by simply reading fairly the text because, if you read fairly the text, you'd have to conclude you can have it both ways all the time - and you can't. The writers of the Bill of Rights knew that just as well as we do. There are tensions that have simply got to be resolved - and the Constitution does not have a provision that tells you how you are going to resolve them.

M. Warner: To what degree should justices be sensitive or reflect the social realities of the time?

D. Souter: You know the word "should" is tough to deal with here. We can only see what our experiences open our eyes to. And one reason you have nine people on the Supreme Court rather than one, it is not merely once again to divide power - but because among nine people there are going to be those who can see things that others don't. And if they can convince the others of what they see, they may very well affect the result in a case. But that's why you want a lot of eyes and a lot of minds. We don't all see the same things because we have not all had the same experiences.

David Souter of New Hampshire is a former justice of the U.S. Supreme Court.

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