Souter's Harvard Commencement Speech 2010

David Souter’s commencement speech at Harvard recently is being touted by some as a profound description of the conundrum of literally interpreting the COTUS in light of changing societal values. Rather it is typical of the dithering we have come to expect from liberal justices intent on making the law conform to the vicissitudes of their decaying social standards.


Souter makes the argument that the publication of the Pentagon Papers represented a conflict between the First Amendment restriction that the federal government was denied any authority to abridge freedom of the press; and some other Constitutional conflict unnamed suggesting that the federal government can make up it’s own rules as it goes along to protect it’s right to engage in secret operations, etc. Understandably, Souter deferred to alleged clever legal arguments by Irwin Griswold, solicitor general and former dean of the Harvard Law School rather than quoting Constitutional precedent (none exists) to craft a non-existent conflict within the Constitution. Understandably because that’s what clever attorneys do: craft asinine obfuscations of the law to sell their altered realities.

Souter should realize that the COTUS was crafted to greatly restrict the power and authority of the federal government by establishing three independent branches in the expectation that each would jealously protect their delegated authorities to preclude abuse by the other two branches. Ingenious as it may have been the People would not ratify the COTUS without the addition of the Bill of Rights restricting the authority of the federal government in no uncertain terms: “…in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…” Therefore, any powers assigned to the federal government in the body of the COTUS that might lead one to question the possible existence of some great federal authority by implication; is negated if it conflicts with restrictions clearly delineated in the Bill of Rights. Though the 1st 8 Amendments are powerfully restrictive, the 9th and 10th Amendments exclude any doubt about the intentions of the Founders regarding the limited authorities of the federal government.

In the context of Souter’s example, if Griswold thought that the federal government had some superior position that empowered them to ‘abridge freedom of the press’ for reasons of their choosing; it should be clear from the First Amendment that no such superior authority exists. That is the purpose of a fair reading and a constructionists approach to the COTUS: clever attorneys be damned.

In Souter’s example comparing and contrasting Plessy v. Ferguson of 1896 and Brown v. the Board of Education of 1954 he completely misrepresents why the courts interpreted “equal protection under law” differently in the two cases. In reality the differences are the result of how the equality of the litigants was defined by the courts, rather than a change in the definition of what equality means in the COTUS.

First of all, the COTUS makes no mention of “separate but equal” which is a total fabrication by the court. If the COTUS had been the standard by literal interpretation, Plessy v Ferguson could not stand. Second, in 1858 in the Dred Scott case, Chief Justice Roger B. Taney ruled that Negroes were not, and could not be citizens of the US and therefore the Constitutional protections did not apply to them. This position was eradicated by ratification of the 14th Amendment in 1868 giving citizenship to anyone born in the US or naturalized.

Clearly had literal interpretation of the COTUS been applied in 1896, Plessy could not stand. The problem has never been literal interpretation of the COTUS; the problem is liberal interpretations and fabrications of pseudo-legal doctrine by activist judges such as Souter who foolishly favor their own intellect (sic) over that of the Founders whose wisdom is verified across the ages.

Ratification of the 19th Amendment in 1920 erased any doubt that Constitutional protections extended to women in America. Nothing of consequence changed in the COTUS; all that changed was whom the courts would recognize as being under the equal protection of the COTUS.

It is not the role of the courts to adjust the meaning of the Constitution according to their continually degenerating liberal interpretations; or to facilitate the usurpation by government of authorities not delegated; or the establishment of new markets by wealthy benefactors. The role of the courts is to assure that all laws are compliant to the COTUS and that they are equally applied to all who come before the court (regardless of gender, race, creed, or life experience).

The literal interpretation of the COTUS is the single most important reason for the undeniable American Exceptionalism throughout our history. Though liberals condemn it, the COTUS comes directly from the Judeo-Christian Bible. An excellent proof of that is the example of Thomas Paine’s Common Sense; the treatise given predominant credit for fanning the flames of Independence: fully one third of which is a direct quotation from the Bible’s Book of Samuel. Historians tell us that Paine was an atheist, yet he knew, understood, and respected the truth of the Bible as it applied to the form of government being established in a fledgling America.

If the Obama presidency has demonstrated anything it is the foolishness parading as academic veracity in the ivy covered halls of what once were considered institutions of higher learning. Hopefully, Souter’s commencement address will be seen for what it is: a lame liberal justification for bastardization of the foundation of America by those who foolishly and egotistically consider themselves wiser than our Founders.