“Justice Souter’s Bad Constitutional History”

Last month, retired Justice David Souter delivered the commencement address at Harvard.  His speech was a veiled challenge to proponents of originalism. Some commentators, such as Washington Post columnist E.J. Dionne, Slate‘s Dahlia Lithwick,  and TalkLeft’s Big Tent Democrat were impressed.  Others, not so much.

In today’s WSJ, Northwestern University’s John McGinnis and USD’s Michael Rappaport take issue with Justice Souter, suggesting he misunderstands original meaning jurisprudence and inadvertently justifies the jurisprudential methodology that produced such horrors as Plessy v. Ferguson.  Here is a taste:

At the recent Harvard commencement, retired Supreme Court Justice David Souter attacked what he regards as the “simplistic” model of giving the Constitution a “fair reading.” A judge, he said, must determine which of the conflicting constitutional values should become our fundamental law by taking account of new social realities. . . .

Justice Souter actually provided a primer on how not to be a judge. He made up a Constitution that never was to justify a kind of judicial power that was never intended. . . .

Justice Souter recognizes that his method of interpreting the Constitution is indeterminate, but he argues that it is necessary to put our trust in justices to reach just results. The historical reality is that this interpretive method permitted justices to create a Constitution of their own contrivance in the service of injustice.