E.J. Dionne: Souter’s Challenge to Scalia

[marmar]

from truthdig:



Souter’s Challenge to Scalia

Posted on Jun 3, 2010
By E.J. Dionne, Jr.


It should become the philosophical shot heard ‘round the country. In a remarkable speech that received far too little attention, former Supreme Court Justice David Souter took direct aim at the conservatives’ favorite theory of judging.

Souter’s verdict: It “has only a tenuous connection to reality.”

At issue is “originalism,” an approach to reading the Constitution whose seeming precision has given conservatives a polemical advantage over the liberals’ “Living Constitution” idea that appears to let judges say our founding document means whatever they want it to mean.

Justice Antonin Scalia, the court’s leading orginalist, summarized his opponents’ attitude toward the Constitution with four words: “You know, it morphs.”

Now, thanks to Souter’s commencement address at Harvard last week, Scalia’s critics have fighting words of their own. Souter, who did not mention Scalia by name, underscored “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.”

The problem is not only that “constitutions have a lot of general language in them in order to be useful as constitutions,” but also that the U.S. Constitution “contains values that may very well exist in tension with each other, not in harmony.” .............(more)

The complete piece is at: http://www.truthdig.com/report/item/souters_challenge_to_scalia_20100603/

[SpiralHawk]

1. The k and the r

for the sake of justice

[ellenfl]

2. kick for later. eom

[Captain Hilts]

3. Wow. Souter da man! nt

[patrice]

4. Meaning, ANY meaning, and mistakes about what words are.

Dionne captures this problem:

The core problem with originalism is that it overlooks what the historian Gordon Wood has observed about the Founders’ work: that it is exceedingly difficult to discern the “true meaning” of the Constitution since it is the product “not of closet philosophizing but of contentious political polemics.”

As a result, “many of our most cherished principles of constitutionalism associated with the Founding were in fact created inadvertently.”

Souter is right to say that “the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we also want liberty. And we want not only liberty but equality as well.”

Because these desires clash, courts are “forced to choose between them, between one constitutional good thing and another one.” Souter’s view admits that this is what judges do. Originalists pretend they’re not choosing. Which approach is the more trustworthy?

I think this kind of struggle is typical of much of what we see and hear on ALL of the issues.

There is almost no, if not 0, direct equivalence between the things that we call words and the phenomenal world. If language worked the way that the "Originalists" and certain other fanatics say it does, it wouldn't work at all.

Trying to insist that a word or words means this and ONLY this is about Power, not meaning.

[cilla4progress]

6. Wow, fantastic analysis, Patrice

I guess we can just get rid of all the judges and government / political leaders - in fact, ALL leaders, and just replace them with artificial intelligence? It's all binary, apparently, in Scalia and the conservative jurists' views....

[Uncle Joe]

5. I believe Souter nailed it with this.

"Because these desires clash, courts are “forced to choose between them, between one constitutional good thing and another one.” Souter’s view admits that this is what judges do. Originalists pretend they’re not choosing. Which approach is the more trustworthy?"

Thanks for the thread, marmar.

[Mojeoux]

7. So nails it.

"not of closet philosophizing but of contentions political polemics."

Just like now.

[Jefferson23]

8. Thanks for posting this marmar, fantastic.

"The core problem with originalism is that it overlooks what the historian Gordon Wood has observed about the Founders’ work: that it is exceedingly difficult to discern the “true meaning” of the Constitution since it is the product “not of closet philosophizing but of contentious political polemics.”