Souter takes a big swing at Scalia's ‘originalism'

[Chris_]

And manages to play the race card at the same time.  Surprise.

WASHINGTON — 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.”

Souter attacked the fatal flaw of originalism — which he relabeled the “fair reading model” — by suggesting that it would have led the Supreme Court in 1954 not to its Brown v. Board of Education decision overturning legal segregation but to an affirmation of the 1896 Plessy v. Ferguson ruling upholding “separate but equal” public facilities. 

"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?

http://www.chron.com/disp/story.mpl/editorial/outlook/7035652.html

[DefiantSix]

Who'd have thunk Souter was a friggin' retard as well as a Constitutional illiterate.

Wonder what Herr Justice's DUmp name is?

[Alpha Mare]

David Souter Dumbs It Down

June 03, 2010 6:54 PM By Matthew J. Franck

Unlike Ed, I have read the Harvard commencement speech by retired Justice David Souter that E.J. Dionne praises so highly in his column today.  And I have to say that it doesn’t come close to living up to Dionne’s build-up.  In fact, it’s not even clear that the speech is any kind of attack on “originalism,” let alone the demolition job Dionne thinks it is.  If it was intended as an attack on originalism, one would have to say that it is an embarrassingly bad one.

 For another thing, when he was on the bench Souter was known to employ originalist reasoning himself on occasion.  And not just in the hypocritical way of many judges, which effectively says “let’s all be true to the framers’ values in ways no one seriously thinks they would recognize.”

But if the speech is not a critique of originalism, what is it?  That’s a good question, because the target of Souter’s criticism appears to be an approach to judging that no one, absolutely no one, actually holds and defends.  The speech employs straw men almost worthy of Barack Obama, the current title-holder in the straw-man argument championships.  Souter would attain Obama-Rama-Ding-Dong levels in the creation of straw men if only one could figure out whom he thinks he is talking about.

By this point Souter has described an argument no one makes in order to advance an argument that is itself amazingly weak.... it bears no resemblance to originalism as practiced or defended by anyone.  His judges are politicians–just more detached ones, answerable to no one but themselves, and wiser even than the Constitution they pretend to interpret.

 This is just about the least useful set of reflections on the art of judging that anyone with judicial experience has ever set down on paper.

  Souter appears to attribute the view he criticizes–whoever these people are–to a kind of childishness that grownups like himself have luckily escaped, evidently by reading lots of Oliver Wendell Holmes.  The condescension here is astounding, and so is the projection.  For it is really Souter, and others who find solace in the imperial power of philosopher-judges, who are filling a need for certainty, control, and simplicity.  The rest of us will take the messy chaos of more democracy, and more above-board politics, over David Souter’s wise jurists any day of the week.

http://www.nationalreview.com/bench-memos/200197/david-souter-dumbs-it-down/matthew-j-franck

[NHSparky]

Swing and a miss--strike three, yer out!

[SSG Snuggle Bunny]

I think the "living, breathing" constitution says liberals should be shot on sight.

[DumbAss Tanker]

The basic flaw with the 'Living Constitution' approach is that sooner or later you end up in the situation portrayed by Solzhenytsin in The Gulag Archipelago, where a citizen could certainly find a copy of the Soviet Constitution, but it had absolutely no relation to the way the government really conducted itself or treated its citizens.