Souter is no Bork--and he's no Black or Frankfurter, either

September 30, 1990|By Jack Fruchtman Jr. | Jack Fruchtman Jr.,Jack Fruchtman Jr. teaches politics and directs the prelaw program at Towson State University. Lyle Denniston's column, "Law in Perspective," which usually appears in this space, will resume next week.

Political commentators have observed how different Supreme Court nominee David H. Souter is from Robert Bork. That comparison is not apt because Mr. Bork, whose own nomination to the high court failed just three years ago, possesses a constitutional theory so radical and idiosyncratic that it is unlike that of any other modern jurist. His reading of the Constitution is so literal, so rigidly founded in original intent, and so oriented toward government power over the individual that we must find another basis of comparison to gauge Judge Souter's philosophy.

If they did nothing else, the Senate Judiciary Committee hearings demonstrated Judge Souter's breadth of vision to the extent that if we can say that David Souter is no Robert Bork, he is no Hugo Black or Felix Frankfurter, either -- two modern justices who stand today as giants of the 20th-century Supreme Court.

Judge Souter's open-mindedness on rights not specifically stated in the Constitution and his willingness to listen to both sides of an argument before making a final judgment illustrate how different he is from both Black and Frankfurter -- and why the Senate should confirm his nomination to the court.

Some jurists (Black and Frankfurter included) have taken a narrow view of what the Constitution says, confining its meaning only to the literal words of the text. Privacy is a prime example. Such "textualists" argue that the lack of a mention of the word "privacy" means that the Constitution cannot protect any such right. They say that because we have a representative government, a right to privacy can be added to the Constitution only through amendment, and not by a decision of the Supreme Court.

Another example is affirmative action. The Constitution says nothing directly about it either, the textualists say, but judges have said that the Equal Protection Clause of the 14th Amendment encompasses the idea of race-conscious programs to help minority groups gain places in higher education and employment. Textualists argue that courts possess no authority to bring affirmative-action programs under constitutional protection. It can only be added by amendment.

An excellent example of a recent, uncompromising textualist to serve on the court was Justice Black, who served from 1937 to 1972 and who holds the second-longest record of service of all 104 justices. (William O. Douglas served one year longer). Black's view of the court was from the narrow perspective that if the Constitution failed to mention a right, then that right was not protected. On the other hand, if the right was included, then protection of that right was absolute.

Two examples (free speech and privacy) will suffice to show how his constitutional philosophy operated in practice. The First Amendment protects the right of free speech ("Congress shall make no law . . . abridging the freedom of speech. . . ."). To Black, that statement meant absolute protection of free speech. Hence, we find him in support of Communists' right to voice their opinions: To prosecute them simply for asserting their beliefs, he said, is "more in line with the philosophy of authoritarian government than with that expressed by the First Amendment."

On the other hand, because the First Amendment spoke of free "speech," Justice Black was unwilling to extend the principle to expression which did not directly involve the spoken word. Thus, when a group of high school students challenged their principal's authority to prohibit them from wearing black armbands in school to protest the Vietnam War, Justice Black refused to say they were exercising a right of free speech because their protest involved no words: "This case," he wrote in dissent, is "wholly without constitutional reasons in my judgment."

On the issue of privacy, in a famous Connecticut birth-control case, where Justice Douglas found privacy to lie between the lines of the Constitution and not explicitly spelled out, Black wrote the following in dissent: "I like my privacy as well as the next one but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision." He objected to the court's position that a right to privacy exists and that government should protect it.

David H. Souter is no Hugo Black. On the contrary, his testimony demonstrated that he understands that the Constitution is not a static document awaiting constitutional amendment to keep up with the times. Unlike Justice Black, he acknowledged that a right to privacy exists and needs to be protected: "I believe that the due process clause of the 14th Amendment does recognize and does protect an unenumerated right to privacy," he told the Judiciary Committee.

Indeed, although affirmative action is to be found nowhere in the Constitution, he told the Judiciary Committee that "there will be a need -- and I am afraid for a longer time than we would like to

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