Relativism rampant

LITTLE ROCK — IT IS a time, like all times, when the country faces serious issues. What may set our time apart is how unseriously those issues are debated.

Exhibit No. 1 this week is David Souter’s commencement speech at, of course, Harvard, where no theory may escape being stretched to extremes. In his address, this retired (thank goodness) 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. This specific case may have involved only seating on a public streetcar in New Orleans, but it would provide the basis for decades of injustice. David Souter set out to explain the misguided majority’s state of mind in rendering such a decision, and 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. ” DIFFERENT times, different points of view, hence different conclusions, each understandable, even defensible, in terms of its own blinkered perceptions. Perhaps not since Oliver Wendell Holmes has sheer, unbridled relativism been made the basis of (unfeeling) law. Mr. Justice Souter could as easily have explained/ defended Roger Taney’s decision in Dred Scott holding that the black man has no rights white men need respect, can never be a citizen of the United States, and is no better than chattel property. Which was the chief justice’s (and many others’) view of the “social realities” of their 19th Century time. Even though it ran counter to the very founding principle of this republic: that all men are created equal.

So does an exaggerated respect for the “social realities” lead judges astray. It is of course not the social realities that are to blame for such injustices, but the judges’ faulty perception of them, combined with the arrogant assumption that they may turn their own interpretation of social justice into law no matter what a fair reading of the principles underlying the Constitution, let alone the Declaration of Independence, would dictate. The Dred Scott decision was a great victory of the spirit of the ugly times over eternal principles of right and wrong, as a promising young politician from Illinois named Abraham Lincoln would soon point out.

As for the old-fashioned idea that a fair reading of the nation’s basic law should guide judges, David Souter dismissed it as “simplistic”-and undertook to do battle with it at Harvard. (And lost ignominiously.)

Justice Souter’s is a relativist’s view of the law gone rampant. It overlooks any number of salient points, beginning with the great dissent of John Marshall Harlan the elder, in which he prophesied that Plessy would prove as infamous a decision as Dred Scott, which it did, for “in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.’’

Those words ought to be engraved somewhere in the Supreme Court’s solemn chambers-just to ward off future David Souters deciding that social justice trumps the real thing. (Whenever you hear the term Social Justice, Dear Reader, as if justice itself were not enough as the end of law,en garde! Sacred rights are about to be compromised.)

Mr. Justice Harlan’s dissent in 1896 proved prophetic-not just because he foresaw the future, but, as with the Prophets of old, he had proclaimed a truth that is timeless, not dependent on one or another generation’s changing view of what “social reality” demands. His words have an absolute reality of their own. They comprise a moral imperative that supersedes the ideological fashion of any one time.

Compared to the grandeur of such a vision, it is David Souter’s vapid relativism that seems simplistic. And small. Though his view is quite popular with our cutting-edge liberals these days, now known as progressives. Theirs is the kind of justice that must always be modified-by race or class or some other special interest. That is how simple justice becomes special pleading, justice becomes social justice, and the law a respecter of persons.

EVEN IN 1896, Mr. Justice Harlan understood the importance of maintaining a color-blind constitution, one that did not recognize race as any kind of determinant of rights-a point of view that has grown quite unfashionable in our age of affirmative action, racial quotas, and other forms of discrimination. Even though such doctrines are always put forth in the name of not discriminating. That is the kind of newspeak the Souters of the bench deal in-even after they have left it, and are preaching at a commencement ceremony instead of in a court of law. As we said, it is not a serious age.

Of course a wise judge will take the social context of a law into account when rendering a decision. But at the same time a justice of the Supreme Court of the United States is duty bound to recognize that he is not free to toss aside the enduring, underlying principles of the Constitution in favor of his own idea of what social reality demands. For he has taken an oath to support the Constitution, not his own precious ideas, or, as David Souter might prefer to put it, his own historical experience. For some principles are timeless. Yes, the great justice considers the times, but not only the times.

It takes justices of rare wisdom to balance the demands of their times with those of timeless principles. That is what the greatest judges do-the John Marshalls and Robert Jacksons, the Cardozos and Brandeises, the Learned Hands and Richard Arnolds. And it is what the David Souters so notably fail to do. Not only that, but they offer sophistical justifications for their failure. Proudly. With considerable fanfare and self-satisfaction, basking in a wholly self-generated aura, and invariably quoting themselves as authorities. (“As I’ve said elsewhere . . .”) Brother Souter committed all those embarrassments in the course of his remarkable performance at, of course, Harvard.