FORMER JUSTICE SOUTER CHANNELS ISAIAH BERLIN

(h/t Andrew Cohen at Politics Daily)

David Souter's commencement speech at Harvard reminded me of Isaiah Berlin's notion of both a plurality of values AND conflict between those values:

The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony.

It’s going to show that the Constitution is no simple contract, not because it uses a certain amount of open-ended language that a contract draftsman would try to avoid, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once.

The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises.