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A Still Speaking God and Mr. Justice Souter

Retired Supreme Court Justice David Souter gave a commencement address at Harvard last month that has been receiving a lot of attention.  While he makes his arguments in a gracious, gentlemanly manner, the address is a stinging rebuttal to those on the Court who espouse a “fair reading model.”  Adherents of this model critique court decisions that, in their minds, “make up the law,” “announcing constitutional rules that cannot be found in the Constitution,” and represent a kind of “activism to extend civil liberties.”  These critics assert that a “fair reading” and simple facts ought to be the sole basis for judgment and judging.  Not so, says Souter.

Souter argues that the Constitution contains values that often exist in tension with each other; justices must arbitrate between competing values.  In addition, facts are never completely objective; justices bring meaning to those facts and the meaning they bring changes over time and in differing contexts.  To make his point, Souter refers to the 1971 Pentagon Papers case in which the government tried to enjoin the publication of classified documents by The Washington Post and The New York Times.  The newspapers relied in their case on the First Amendment’s guarantee of the freedom of speech.  The government argued that the Constitution granted to the President the powers to provide for national security, conduct foreign policy, and lead the military, and that these powers would be jeopardized or infringed upon by publishing the Pentagon Papers.  Here two Constitutional values were in conflict; as Souter puts it, the language of the Constitution “guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once.”

Souter then goes on to compare the Court’s decision in Plessy v. Ferguson which, in 1896, upheld segregation on rail cars, and Brown v. Board of Education which determined in 1954 that segregated schools were unconstitutional.  The Constitution hadn’t changed and the facts certainly appear to be, if not identical, very similar.  What changed?  Souter argues that what changed was the meaning the justices found in the facts of the case.  In 1896, with slavery still a living memory for many of the justices, de jure (even if not de facto) equality on rail cars looked like significant progress.  “But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast.  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.”   Souter dismisses the “fair reading” crowd:  “So much for the assumption that facts just lie there waiting for an objective judge to view them.”

Those of us who spend a good deal of time interpreting Biblical texts, particularly in relation to the contested moral issues of our day and often in the context of the considerable residue of the fundamentalist – modernist controversies of the early 20th century, will find ourselves recognizing much of this hermeneutical argument.  Obviously, the Bible and the U.S. Constitution are different sorts of documents.  (It is interesting, however, that many of the “fair reading” proponents tend to find a kind of divine hand in both and subject both to the same literal reading.  This makes them, I guess, suitable mates for court house walls!)  The Bible is a closed canon, while the Constitution is not, so the actual text changes over time in the Constitution while the Bible, with the exception of manuscript discoveries and corrections, does not.  Most Americans require translation in order to read the Bible; the U.S. Constitution can be read, again by most, without translation.  Yet, as with the Constitution, many Christians seem quite willing to say that the moral facts do just lie there in the Bible waiting for an objective judge – or Christian – to view them.  The rest of us are condemned for a kind of “liberal activism,” changing the plain reading of the Biblical text and making it up to suit our various ungodly predilections.

Souter’s two arguments – internal inconsistency or tension, and evolving meaning brought to the “facts” – mirror in many ways the arguments made by those of us who attempt to read the Biblical text critically and contextually.  For several years the United Church of Christ has been saying that “God is still speaking.”  By this we don’t mean that the words of the text change or that God is offering us a revelation beyond what we find in scripture.  We continue to “look to the Word of God in the Scriptures, and to the presence and power of the Holy Spirit, to prosper [our] creative and redemptive work in the world,” (Preamble to the UCC Constitution).  The received text remains constant and central.  But we believe that God “still speaks” in the sense of enabling us to find new meaning in the ancient text.  Like responsible justices, “still speaking” Biblical interpreters do not engage in this reading carelessly or cavalierly or, at least self-consciously, for our own interests.  But neither do we feel constrained to say that an unchanging text demands immutable meanings.

How is it that people approach these kinds of texts so differently whether as Christians or justices?  (By the way, the two vocational categories are not mutually exclusive!)  Here is where Souter makes his most intriguing proposal:

I believe. . . that behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise.  And who has not felt that hunger?  Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions?

But here is where Souter and the fair reading crowd part ways.  “Where I suspect we differ most fundamentally is in my belief that in an indeterminate world I cannot control, it is still possible to live fully in the trust that a way will be found leading through the uncertain future.”  For Souter, that way involves reason, respect for the words of the Framers, and “by facing facts, and by seeking to understand their meaning for living people.”

Still speaking Christians would identify the location and orientation of their trust differently, though we would scarcely argue with his trinity of reason, text, and context.   Souter, respectful of the Constitution, does not import divinity into his argument.  But in the end, “living fully in the trust that a way will be found leading through the uncertain future” is a religious rather than primarily a legal matter.  A still speaking God demands trust in a living word, not obedience to a fixed document.   “The Lord has yet more light and truth to break forth from the Holy Word.”   Pilgrim Pastor John Robinson’s words, uttered a mere 30 years before Harvard was established, are etched in the stone gate at Chicago Theological Seminary, a lesson for our community that certainty and control lie beyond enslavement to established meanings and wooden texts.   We can all be grateful to Mr. Justice Souter for helping remind us of that.

John H. Thomas

Read Justice David Souter's Speech


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