In his Washington Post column today, E.J. Dionne Jr. claims that former Supreme Court justice David Souter’s commencement address at Harvard last week “should become the philosophical shot heard ’round the world” because it gives critics of originalism “fighting words of their own.” I confess that I haven’t yet taken time to read Souter’s speech—it’s in my “probable fat targets” pile in the event of a summer lull—but there’s nothing in Dionne’s summary of it that remotely suggests that there’s anything extraordinary or novel about it.
The heart of Dionne’s summary is Souter’s claim that originalism can’t account for the result in Brown v. Board of Education. But that’s long been the Left’s supposed big stick for beating originalism, and it’s not much of a stick. As I discussed in this essay five years ago, there are originalist justifications for Brown (Dionne in fact acknowledges Michael McConnell’s argument). Moreover, if one finds those justifications unconvincing, the most sensible conclusion, I would submit, would be that the Fourteenth Amendment was deficient, not that originalism is.
What I find most striking about Dionne’s piece is his unquestioning acceptance of Souter’s apparent position that it is the proper role of judges to decide—indeed, that judges are “forced to choose”—which constitutional “value” should triumph when constitutional values are “truly at odds with another.” But every constitutional question can be said to present a clash of constitutional “values”—e.g., liberty versus equality, representative government versus the rights of the individual. Judges do not have a roving mandate to mediate these values. That’s what the processes of representative government are for. The relevant question for a judge, in a constitutional case, is whether a democratic enactment violates a constitutional command. If not, the judge has no basis for invalidating the enactment.