Souter's Judicial Philosophy Supports Plessy?

There has been a lot of praise heaped on Justice Souter's recent commencement speech. E,J. Dionne called it "the philosophical shot heard 'round the country." But did his speech, taken seriously and to its logical conclusion, actually provide support for Plessy v. Ferguson? Jason Sorens says Yes, and I agree.

In bashing the notion that judges should rule on the basis of “fair reading” of the law, Souter tries this mind-bogglingly inane reductio ad absurdum:

For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown [v. Board of Education] must either be flat-out wrong or a very mystifying decision. Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional. But if Plessy was not wrong, how is it that Brown came out so differently? The language of the Constitution’s guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be hard to say that the obvious facts on which Plessy was based had changed, either. While Plessy was about railroad cars and Brown was about schools, that distinction was no great difference. Actually, the best clue to the difference between the cases is the dates they were decided, which I think lead to the explanation for their divergent results.

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 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 see.

If we take what Souter is saying here seriously (which we probably should not), he is saying that Plessy v. Ferguson was rightly decided. After all, his stated view here is that judges should read the constitution in light of the values of their time (arguably, it’s even worse – a close reading of the speech suggests that he thinks judges should simply rule on the basis of their own values).

And then what about this nonsense? “To that generation, the formal equality of an identical railroad car meant progress.” O RLY? In Plessy, the Supreme Court ignored the plain language of the 14th Amendment, which prohibits states from “mak[ing] or enforc[ing] any law which shall abridge the privileges or immunities of citizens of the United States.” Prosecuting someone for sitting next to a person of color pretty clearly abridges his privileges and immunities. In Plessy, the Court was affirming the conscious and premeditated attempts of Southern state legislatures to re-establish white supremacy after Reconstruction. In doing so, they reversed an earlier decision allowing Congress to prohibit state-level segregation. There is simply no excuse for saying that Americans of that time viewed “separate but equal” as “progress.”

UPDATE: Damon Root hits a similar note.

Here’s the problem with Souter’s claims: The Plessy decision is wrong under an originalist reading of the Constitution. Originalism includes the original public meaning of the 14th Amendment, which commands: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Among those privileges or immunities is the right to economic liberty. Remember that the origins of the 14th Amendment lie in the anti-slavery politics of the Radical Republicans who drafted it and spearheaded its ratification. Their philosophy centered on a radically libertarian form of self-ownership, one that included both the right to armed self-defense and the right to liberty of contract. That philosophy was enshrined in the Constitution when the 14th Amendment was ratified in 1868.

In Plessy, the Supreme Court upheld a Louisiana law that forbid railroad companies from selling first-class tickets to black customers. That law was a blatant violation of economic liberty under the 14th Amendment and should have been struck down as such. That the Supreme Court failed to do so isn’t an indictment of originalism, it’s an indictment of the justices who failed to take the Constitution at its word.