Souter Debates Constitution

Exactly 222 years after the U.S. Constitution was signed, David H. Souter ’61—who stepped down from the Supreme Court this June—joined a panel of legal-minded Harvard professors yesterday in celebrating the nation’s founding document with a lively debate about its relevance.

Souter has garnered a reputation for steering clear of the public limelight, preferring instead to retire to Weare, N.H., to the small farmhouse that was home to his parents and grandparents.

But on the anniversary of the 1787 signing of the Constitution (and his 70th birthday), Souter, sporting a navy blue Lowell House tie, returned to his alma mater, providing a glimpse into his 19-year tenure on the Supreme Court during Harvard’s annual Constitution Day event.

For the past five years, Harvard has observed this anniversary with lectures by preeminent Harvard Law School professors including Cass R. Sunstein ’75, who is now heading the White House Office of Information and Regulatory Affairs.

Harvard, which received about $535 million from the federal government in the 2008 fiscal year, is required per a 2004 federal law for all schools receiving federal funding to provide an annual lesson on the nation’s founding document.

In the spirit embodied by the event’s title, “The U.S. Constitution: What Should We Celebrate and What Should We Criticize,” a five-member panel debated the document’s merits during a lively debate before Souter’s much-anticipated appearance on stage.

Law School Professor Charles Fried opened the discussion by professing his veneration for the 7,500-word document, only to have his fellow Law School professor Michael J. Klarman sharply criticize the Constitution for its irrelevancy and endorsement of values that should be rejected, such as slavery.

“We are responsible for our own fate,” Klarman said, refusing to give the original framers of the Constitution or the Supreme Court credit for the “many things about our political culture we can take pride in,” primarily civil rights protection. “To delude ourselves from thinking otherwise is a mistake, and a potentially dangerous one.”

The panel also included Law School professor Mark V. Tushnet ’67, visiting professor to HLS and the Faculty of Arts and Sciences Sanford V. Levinson, and Kennedy School professor Alexander Keyssar ’69—who, after Klarman’s rousing 12-minute diatribe against the Constitution’s failings, joked that the audience might as well “roll it and smoke it.”

Law School professor Noah R. Feldman ’92, who clerked for Souter (“the best year of my life,” he confessed) in 1998, spent the rest of the event teasing out of Souter his views on approaching Court decisions.

Souter, whose polite but persistent questioning of lawyers who appear before the court and gracefully written opinions reflect his relatively liberal stance, described himself as a “pragmatic,” in the sense that he “worries first about the case and factual details of a case before deciding just how grand a principle is necessary to decide it.”

“That’s why I espouse the common law method, which gets down to nitty-gritty kinds of factual issues to decide which of the competing principles have a better argument in a given case,” Souter explained.

When asked about the role of judges, Souter said their job is “making the law” in the sense that they must decide the answers to questions the legislative branch did not account for at the time of a given statute’s passing.

One of the few Supreme Court justices to step down from the bench while in good health, Souter said that he plans to undertake a variety of part-time jobs, such as returning to the First Circuit in Boston, where he spent just one day hearing cases before starting his tenure at the Supreme Court.

Souter has also joined a committee in his home state of New Hampshire that aims to provide statewide standards for a curriculum of civic education—a “subject that has nationally fallen into great disrepair.”

And “quite frankly,” the now-retired Supreme Court Justice of simple, but eccentric, tastes (most notably his daily lunch of yogurt and an apple, including the core), said he was looking forward to “do[ing] some concentrated reading.”

—Staff writer June Q. Wu can be reached at junewu@fas.harvard.edu.