Contesting the Constructionist Argument

Recently retired Justice David Souter have a fantastic commencement address at Harvard last week where he outlines several reasons the constructionist theory of constitutional law (he calls it the "fair reading model") is so flawed, and how progressive decisions from the bench isn't judicial activism, but rather the product of progress and the passage of time.

He cites specifically the Pentagon Papers case, where in the First Amendment's press protections are in direct conflict with latter Amendments concerning the government's responsibility to provide security. He makes much of the "paired desires" of the American people, which often stand in conflict. He notes,

"The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice. And choices like the ones that the justices envisioned in the Papers case make up much of what we call law."

If you have 15 minutes, read the whole thing. It's a remarkable argument.