Souter: Originalism is “Unrealistic”

by Ryan on June 20, 2010

in Judicial Watch,Law,Politics

Writing for the American Thinker, Lawrence J. Siskind makes a great point about getting to know a Supreme Court candidate (like Elena Kagan) well before confirmation because afterward it’s simply too late.  His case in point:  David Souter’s recent Harvard commencement address last May.

Bush 41 nominated and 90 Senators confirmed David Souter in 1990 without really knowing anything about him.  Over his 19-year tenure, Souter has voted with the liberal justices nearly all the time — he was a reliable fourth or fifth vote on many of the activist decisions made during his tenure.

Why?

Siskind cites the recent commencement address when Souter said that the judicial concept of originalism (deferring to the actual language and original intent of the Constitution itself)  is “unrealistic” and that a judge must attempt “to understand [the Constitution's] meaning for living people.”  So, the Constitution means what he and four other justices says it means — like a perpetual Constitutional Convention!  In that case, why even have a document from which to refer?

Also, in this speech Souter actually said that in 1896 the Plessy decision (whose “separate but equal” ruling upheld de jure segregation) was appropriate for that era because that’s where the American people were back then, and that in 1954 when Plessy was overturned by Brown v. Board of Education, that’s where the American people were at that point too.  In essence, they were both appropriate under his “living” Constitution point of view.

I have to seriously disagree.  Plessy was just as terrible in 1896 as in 1954.  As Siskind notes, even the racist Justice Harlan at the time saw its inherent flaws.  David Souter was an Associate Justice on the Supreme Court for 19 years and just justified 58 years of painfully racist legal segregation as a means to defend his “living” Constitution judicial philosophy?  Kinda scary, yet revealing about the flaws of the “living” Constitution concept.  Now I’m really glad he’s gone!

The broader message here is that no Senator should take a vote regarding Elena Kagan’s confirmation until her philosophy is well-known and public — we don’t want another Souter lurking about.

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