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.
~ McGinnis & Rappaport, “Souter’s Bad Constitutional History”
Recently retired Justice David Souter delivered the commencement address at Harvard where several statements were direct attacks against the originalist understanding of the Constitution as held by Justices Thomas and Scalia, calling originalism a “simplistic” model of giving the Constitution a “fair reading.”
Law professors John McGinnis and Michael Rappaport in a Wall Street Journal article offer the reader a brilliant retort to Justice Souter’s liberal “living Constitution” jurisprudence, wherein the judge makes up the Constitution as he goes along based on his own personal policy preferences instead of relying on the plain meaning of the document, which is the original intent of the framers.
McGinnis and Rappaport wrote:
One of Justice Souter’s two primary examples of the need for justices to avoid simplistic judging (i.e., originalism) is Brown v. Board of Education, the landmark 1954 case barring public-school segregation. A central premise of Justice Souter’s praise of Brown is that it was dictated not by the Constitution’s original meaning but by new social realities.
Indeed, but what were these “new social realities” invented by Brown v. Board of Education? One was based on a doll study conducted by Howard psychology professors Dr. Kenneth Clark and Dr. Mamie Phipps Clark, where children were asked which of the various colored dolls were their favorite. Because the majority of black children tested chose white dolls, NAACP attorney Thurgood Marshall (and future justice of the Supreme Court) was able to use this research to convince the Supreme Court that their findings revealed that racial discrimination was so endemic in society as to be psychologically damaging to the educational development of black children.
While psychological speculations may impress most liberal activist judges, a Natural Law–original intent reading of the Constitution demonstrates to me that America didn’t really need the Supreme Court decision of Brown v. Board of Education. Why? If Congress had simply followed the original intent of the framers, which was based on Natural Law and expanded Thomas Jefferson’s admonition in the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal,” then Brown wouldn’t have been necessary. Such a singular statement of equality for all should have been enacted into constitutional law via the Reconstruction-era amendments, or by the Supreme Court resurrecting this Natural Law precept as a fundamental principle of federalism.
In my law-review article “Brown v. Board of Education: Right Result, Wrong Reasoning,” I outlined what Brown should have said based on the arguments the abolitionist used to combat slavery 100 years earlier:
Until the early 20th century, the Supreme Court followed societal presumptions [based] on an integration of legality and morality. These presumptions were both impliedly and overtly expressed in many of the Supreme Court opinions dealing with issues of morality, religion and the elements of a civilized society. Since its earliest decisions, the Supreme Court had formulated its ideas on morality, liberty, justice and equality. The Court affirmed the dignity of all God’s creation; that all people had certain, basic natural rights that were guaranteed to them by their very humanity – an inalienable or natural right that transcends the mere laws of man. In the context of Brown, these inalienable rights should extend to black people. …
“In the 19th century, Supreme Court decisions quoted philosophers at greater length than more contemporary opinions, but virtually all references were to Montesquieu, whose L’Esprit des Loix (“The Spirit of Laws”) was repeatedly cited for propositions of limited government, balance of powers and the need for virtuous citizens. … The Court’s reference to such thinkers seems natural and appropriate, especially because many references were to the principles of separation of powers and the institutional limits of the Court.” The Court thought that the abolitionist’s reasoning about black people being equal to white people on natural law, moral, religious or humanitarian grounds to be, at best, provincial and unsophisticated; at worst, fanatical, medieval and hyper-religious.
The increasing arrogance and fascist tendencies of liberalism amaze me. What gives Justice Souter and his other liberal activist colleagues like Ginsburg, Stevens, Sotomayor, Breyer and even Kennedy the right to place their own personal policy preferences (Positive Law) above the original intent of the constitutional framers (Natural Law)? If anyone is being “simplistic” here, it is these socialist judges who follow unconstitutional traditions derived from the substantive due-process jurisprudence beginning with Dred Scott v. Sandford (1857), a false doctrine the Court first created out of whole cloth to justify a “natural right” to slavery and de jure discrimination under Plessy v. Ferguson (1896).
Should the Constitution be determined by liberal jurists like Justice David Souter, a man who after 19 years on the high court did irreparable harm to the Constitution and had not one memorable utterance or judicial principle, or should the Constitution be determined by the constitutional framers, men who put their lives on the line to found this republic: Washington, Madison, Jefferson, Adams, Franklin and Hamilton? Here, Justice Souter’s “current social realities” must never trump the Constitution’s original meaning.
Had Natural Law jurisprudence governed, would Brown v. Board of Education have been necessary? McGinnis and Rappaport don’t answer that question directly but write: “While we believe that an originalist reading of the Constitution also supports Brown, the salient point here is that Brown would not have had such central importance had the Reconstruction-era [13th, 14th and 15th] amendments been enforced according to their original meaning.”
Just as the legions of liberal and Marxist professors currently occupying Harvard are intellectual squatters of the original house of Harvard founded in 1636 by ultraconservative Christian Puritans, likewise Justice Souter’s 19-year tenure will be viewed by honest legal historians as that of a judicial simpleton and an unremarkable squatter in the august halls of the Supreme Court.