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Tuesday, August 10, 2010

originalism

Has anyone offered a cournterpoint to Justice Souter’s Harvard commencement address on May 27, 2010?
In the Washington Post EJ Dionne wrote glowingly of Souter’s address:
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.
A layman is, of course, reluctant to disagree with such an august pair, but words do have meaning.
Plessy and Brown were both decided in a society which was opposed to black people having the rights guaranteed by the Constitution’s 14th amendment. In both cases the Court had the opportunity to read the plain words or allow their imaginations to construct a device that would provide for a “modern” interpretation of the 14th amendment that would be more consistent with their contemporaries' preferences.  It required a "living Constitution" perspective to discover Plessy’s “separate but equal” travesty in the 14th amendment. 
In the Brown case the Court looked at the same 14th amendment to the Constitution and discovered that it said “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” They ruled that way. That is reading the Constitution. That is originalism.

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