It is a time, like all times, when serious issues await debate. What may set our time apart is how unseriously those issues are debated.
Exhibit No. 1 the other day was David Souter's commencement speech at, of course, Harvard, where no theory may escape being stretched to extremes. In his address, the retired associate justice of the U.S. Supreme Court didn't exactly defend Plessy v. Ferguson, the infamous 1896 decision that would establish Jim Crow as the law of the land for the next half-century. But he came perilously close to it.
David Souter did so in order to explain/justify how judges can, do and must take the social realities of their time into account when interpreting the Constitution -- as opposed to that other, more straightforward standard, a fair reading of the law.
Each approach has its limitations, and Mr. Justice Souter certainly revealed his. In an attempt to explain the difference between the Supreme Court's frame of mind in 1896 and how it had changed by 1954, when Brown v. Board of Education was handed down, the retired justice made the case for relativism as a legal philosophy.
Plessy was a landmark decision, all right, and what an ugly landmark it remains. It may have involved only seating on a public streetcar in New Orleans, but it would provide the basis for decades of injustice. The Hon. David Souter may have set out only to explain the misguided majority's state of mind in 1896, but he wound up suggesting it as a template for how constitutional decisions are and maybe should be reached:
"As I've said elsewhere, the members of the Court in Plessy remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery. ... As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see ... and when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race. "
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