Souter happy to shape our Constitution

by David B. Rivkin Jr. and Lee A. Casey

USA Today
June 15, 2010

Our perennial national debate over how to interpret the Constitution will soon be renewed, as the Senate considers the Supreme Court nomination of Solicitor General Elena Kagan.

In fact, former Justice David Souter set the discussion in motion last month in a Harvard commencement address— arguing that seeking to resolve difficult constitutional questions based on an honest effort to construe that document's words (whether broadly or narrowly) "has only a tenuous connection to reality" and leads to bad decisions.

Souter's candor is commendable but also genuinely troubling — the practical equivalent of a retired cardinal announcing that religion is an opiate for the masses. Even judges who quietly believe that the Constitution is an irredeemably reactionary document, which they must pull and push into the 21st century, are not generally so bold, preferring instead to cloak their innovations with references to the Constitution's text.

More