( – promoted by GMD)

(Crossposted at http://www.mulishbehavior.blog…

Anyone who pays attention to the U.S. Supreme Court knows that for the last generation an epic battle has been taking place over the role of constitutional interpretation. The old Warren Court and its progeny read the Constitution as a competing body of rights and laws that, taken together with specific facts of individual cases gave us a broader understanding of constitutional rights (e.g., a view that “separate” is “not equal” and/or, for example, a “right to privacy”). Conservatives, notably the Federalist Society led by Justice Antonin Scalia, have been trying for years to whittle away at our rights by interpreting the constitution as a “literal” document, something they call “originalism” which would greatly limit the Court’s ability to protect many of the rights and responsibilities many Americans have come to believe are bedrock principles of our jurisprudence.

But even Justices in the middle are pushing back on this excessively narrow and limited view of the Constitution. That is, a limitation on the essential core of “judging.” Most notably recently retired U.S. Supreme Court Justice David Souter.

The Washington Post ran a recent opinion column by E.J. Dionne on a speech given by Justice Souter at Harvard University’s commencement ceremony. Souter, was the “quiet” Justice from neighboring New Hampshire, appointed by George H.W. Bush in 1990, who retired in June of 2009. He now continues to serve on the 1st U.S. Circuit Court of Appeals as an active Justice.

The press, rather simplistically, has mistakenly characterized Souter’s remarks as a defense of “judicial activism,” when really it is a repudiation of the judicial activism practiced by those on the right — the theory that the Constitution must be read as a static, literal document, inflexible, inviolate, and irrelevant to our times. In short, Souter’s remarks are a clear refutation of the illogical approach of the Federalist Society and others on the right with respect to constitutional interpretation (what they like to think of as “originalism” or the philosophy that we can (and must) resolve all of modern society’s legal conundrums by a strict “fair reading” (Souter’s words) of the Constitution).

Souter’s point is that the Constitution sets out many general legal and moral principles that are frequently in conflict with one another (e.g., “liberty” vs. “security” and/or “equality”) thereby precluding a simple literal reading. Rather, judges are required to weigh these principles against one another in the context of the facts of a given case and contemporary legal, moral, and ethical norms. That is, taking into account our societal values, not as a determinative factor, but perhaps as context for a decision based on the law, but also not so disconnected from the reality of society that you couldn’t have, for example, a decision like Brown v. Board of Education, which would not have been possible from an originalist perspective. Does that mean, according to Justice Scalia, the Federalist Society (and others) that Brown should be overruled? It is troubling that this is the logical extension of originalist theory in the context of important decisions like Brown.

In fact, the “originalist” philosophy, far from being a mainstream judicial philosophy, is more akin to the views espoused by people like Rand (and Ron, for that matter) Paul and the Tea Party Movement. Paul, who recently won a primary contest in Kentucky for a U.S. Senate seat flatly stated that the federal government had no business ending segregation at lunch counters and other private establishments serving the public through the Civil Rights Act of 1964.