“Deliberately Open-Ended Guarantees”

For those of you in the legal community, this is old news, but deserves second reflection; for the remainder of my admittedly small readership, read this speech by Justice David Souter, given at Harvard, on the difficulty of providing a meaningful resolution to complex constitutional questions.

He explains that, at best, we expect the law to be syllogistic — major premise applied to discrete factual situation compels simple resolution:

The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution, and on a template for deciding constitutional claims, that go together something like this.  A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution.  The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed.  Once they have been determined, the facts on their face either do or do not support the claim.  If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim.  On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.

But a Constitution is not a statute. It neither contemplates nor attempts the exhaustive resolution of all possible questions:

There are, of course, constitutional claims that would be decided just about the way this fair reading model would have it.  [. . .]  But cases like this do not usually come to court, or at least the Supreme Court. And for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.

Even a moment’s thought is enough to show why it is so unrealistic.  The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.  These provisions [. . .] call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

Accordingly we must routinely look beyond the Constitution to resolve constitutional questions. In defense of this position, and against the alternative “fair reading” approach to constitutionalism (a hybrid textualism/originalism), Justice Souter marshals two arguments: societal assumptions change, compelling different results (Brown v. Board of Education), and the Constitution asks us to vindicate competing values, thus requiring judges to balance them, and foreclosing resort to simple absolutes (New York Times Co. v. Sullivan).

To these points we can add one more, expanding on Souter’s characterization of constitutional rights as “deliberately open-ended guarantees.” The founding generation knew how to write a static law. They also knew they were building a country whose life would be measured not by generations, but by centuries, and as witnesses to history, knew that such a future implied levels of societal change that could not be anticipated, much less legislated in advance. Towards that end they gave us not an exhaustive rulebook but a guide to the values we should seek to balance when resolving novel conflicts. Judges aren’t bound by the way society looked in 1789, then, or by the precise letters of the Constitution, but by the overall structure of the document, and the types of balances it strikes. This reading preserves for the document a dignity of which simpler approaches would rob it. And, in light of the abhorrent compromises intermittently struck by constitutional scholars throughout the history of the document, lets the Constitution, and its drafters, serve as the instruments of their own redemption. It also validates the core assumption of the American dream: that the future can be better than the past.

One comment

  1. The national source code should not be open-ended.

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