In a Commencement Day speech to Harvard’s graduates, former U.S. Supreme Court Justice David Souter said Thursday (May 27) that judges have no choice but to interpret the U.S. Constitution beyond its plain language, and he criticized those who argue that its meaning “lies there … waiting for a judge to read it fairly.”
He said that though specific parts of the Constitution may be plainly and clearly written, judges are charged with interpreting the entire governing document. Its multiple guarantees are often conflicting and must be settled from the bench. Further, Souter said, the judicial interpretation of facts can change over time, so judges have to “understand their … meaning for the living.”
Souter said a black-and-white interpretation “fails to account for what the Constitution actually says, and fails just as badly to understand what judges have no choice but to do.” Souter took aim at what he termed the “fair reading” model of constitutional analysis as simplistic and prone to “discourage our tenacity … to keep the constitutional promises the nation has made.”
“The Constitution embodies the desire of the American people, like most people, to have things both ways,” Souter said. “We want order and security, and we also want liberty. We want not only liberty, but equality as well. These paired desires of ours can clash, and when they do, a court is forced to choose between them.”
Souter, who stepped down from the court last June after 19 years, was the main speaker at Commencement Exercises, and received an honorary doctor of laws degree earlier in the day. In his 30-minute speech, delivered outdoors at Tercentenary Theatre during the annual meeting of the Harvard Alumni Association, Souter said there are some cases where a simple reading of the Constitution’s language suffices to settle the outcome, but those are not the cases that make it all the way to the Supreme Court.
Some cases that do, he said, stem from open-ended guarantees made in the Constitution, such as due process and equal protection. But justices have work to do, he said, even in cases involving the Constitution’s clearest language. Souter drew from two famous cases — the Pentagon Papers and Brown v. Board of Education — to explain his position.
The Pentagon Papers case pitted the U.S. government against The New York Times and The Washington Post, which had gained classified documents relating to the Vietnam War. The government sought to suppress their publication on national security grounds. Though First Amendment language is clear that “Congress shall make no law … abridging the freedom of speech, or of the press,” and though the court ultimately did decide for the newspapers, the court also recognized that even freedom of the press — constitutionally guaranteed in clear language — was not absolute. That’s because, Souter said, justices are charged with interpreting the entire Constitution, not a lonely amendment. Beyond freedom of the press, the Constitution also grants the government authority to provide national security and gives the president power to manage foreign policy and the military. In this case, the balancing of rights came out on the newspapers’ side, but the decision, Souter said, left the door open to swing differently in the future.
Not only is apparently clear language sometimes not so clear, but apparently simple facts in a legal case are sometimes not so simple, Souter said. Facts can have meanings that change with time and circumstances, and it’s up to judges to interpret them for those living now.
Souter used the example of the landmark 1954 Brown v. Board of Education case that abolished segregated schools to illustrate his point.
He said the facts in the Brown case were analogous to the trend-setting 1896 Plessy v. Ferguson case, in which the court ruled that separate but equal railroad cars for black and white passengers were acceptable under the Constitution. Souter argued that the main difference in the two cases was not the facts, but rather the passage of time, which affected the justices’ interpretation of the facts.
In 1896, when Plessy was decided, slavery and the Civil War were still relatively recent events. It was against that backdrop that the justices decided that separate but equal rail cars were acceptable. Fifty-eight years later, when Brown v. Board of Education was decided, the situation had changed, and the horrors of slavery and war had receded.
“The judges in 1954 found a meaning in segregation that the majority of their predecessors in 1896 did not see. That meaning is not captured by descriptions of physically identical schools or physically identical railroad cars,” Souter said. “The meaning of facts arises elsewhere, and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. … When the judges in 1954 read the record of enforced segregation, it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race.”
The Alumni Association’s annual meeting takes place during the afternoon on Commencement Day. In addition to Souter’s remarks, this year’s event featured a welcome by outgoing Alumni Association President Teresita Alvarez-Bjelland ’76, M.B.A. ’79, remarks by Harvard Treasurer James Rothenberg ’68, M.B.A. ’70, and the annual report to the alumni by Harvard President Drew Faust.
Faust joked during her talk that she was honored to “serve as Justice Souter’s warm-up act.” In her yearly speech to the gathered alumni, Faust highlighted Harvard’s long history of public service — embodied by Souter and his work as a judge — and the University’s expanding efforts in that area.
Faust highlighted the enormous effort that Harvard students put into public service activities — donating nearly a million hours to area communities this year alone — and said the proportion of seniors taking jobs in public service was up dramatically in the past two years, from 17 to 26 percent.
She also highlighted faculty work that seeks to help others and society, from Paul Farmer’s work providing health care to the poor in Haiti, to Kit Parker’s service as a major in the U.S. Army, to Max Essex’s work with those infected by HIV in Botswana. Faculty are laboring on a host of international problems, including fighting climate change, addressing the financial collapse, examining the factors that drive personal financial decisions, improving teacher effectiveness, creating building designs to house Haitian earthquake victims, and improving airflow in Rwandan hospitals.
Faust announced the creation of a group of Presidential Public Service Fellowships, which will fund 10 students across the University in summer volunteer activities. Faust also said that the upcoming Harvard fundraising campaign would explicitly strive to double funding for undergraduate summer service opportunities and increase it for similar activities involving graduate students.
“Ultimately more important than students’ brief years at Harvard is what these graduates will do with their diplomas and their lives,” Faust said. “I would like to imagine that whatever career our graduates pursue, whether in the private or the public realm, they will choose to make service an ongoing commitment.”