How “No Law” Doesn’t Mean “No Law” (Higher Lawmaking in America — Part 1)

Eight years ago, Justice David Souter, who served on the Supreme Court from 1990 until 2009, gave a memorable address to those attending Harvard’s 359th Commencement.

No, his remarks never became widely circulated on the internet like Steve Job’s speech at Stanford in 2005, which was watched over 8.9 million times. In fact, I can confidently predict that Justice Souter’s speech will never be listed in an article detailing the best commencement addresses of all time. It also seems pretty obvious that Justice Souter was by no means seeking to provide remarks that would be echoed throughout the ages.

Nevertheless, the significance of his speech lies in the sentiments that it repeats not in the fact that its contents will be virally repeated.

In order to fully understand this point, one must first become acquainted with what Justice Souter’s remarks were and then be able to contextualize them in the larger history of America’s constitution.

Understanding Souter’s Speech

As stated above, Justice Souter delivered this address in the spring of 2010 at Harvard’s graduation ceremony. While I was personally not in attendance for this particular speech, I have more recently had the privilege to attend a presentation that Justice Souter delivered at my university several years ago on the same topic.

His point was quite simple: as a result of the competing guarantees that the document provides when read holistically, the Constitution often requires judges to make choices regarding what the proper implementation of some of its competing provisions should look like.

Retelling a well known tale involving Erwin Griswold, an attorney who was also the former dean of Harvard Law School, Souter takes his audience back nearly 50 years into the past. In 1971, Griswold found himself aiding the government’s war efforts in Vietnam, but he wasn’t serving on the front lines of the battlefield. Instead, Griswold was serving as the Solicitor General of the United States and defending the government in one of the 20th century’s most pivotal First Amendment cases: the Pentagon Papers Case.

For those readers who are unaware of the background of the case, The New York Times and TheWashington Post had obtained classified government documents which were part of a Defense Department study detailing America’s actions in Vietnam. Prior to some of these documents being published, President Nixon went to the courts to place a restraint on the newspapers, and the case very quickly made its way before the Supreme Court.

Griswold’s task in defending the White House’s position was an uphill battle from the beginning. He was expected to argue against the First Amendment, one of the Constitution’s most strongly worded provisions with its establishment that “Congress shall make no law … abridging the freedom of speech, or of the press.” (emphasis added)

To make matters even more difficult, Griswold was expected to argue against the First Amendment before one of the Court’s most ardent First Amendment literalists: Justice Hugo Black. As Souter explains to his Harvard audience, Justice Black’s understanding of the First Amendment was straightforward. The free speech clause was a constitutional provision as clear to him as the requirement that senators be at least 30 years old.

Nevertheless, Griswold argued his side of the matter as best he could by citing the national security interests at stake if the newspapers were permitted to publish the “classified information.” However, citing the lives that would be put in harms way and the war process that would be jeopardized was not enough to sway Justice Black and some of his colleagues on the bench during the oral argument of the case. In what could have only been predicted as an inevitability, Griswold and the Court’s defenders of the First Amendment engaged one another in a moment of constitutional history that Justice Souter appropriately describes as “one of those instances of a grain of sand that reveals a universe.”

When asked if the federal courts would become boards of censorship if the Court were to accept Griswold’s argument, the Solicitor General responded “I don’t know what the alternative is.” His response was quite literally met with laughter, but Griswold did not yield. He continued with quite possibly the most memorable answer in response to the Court’s questioning:

The problem in this case is the construction of the First Amendment. Now Mr. Justice Black, your construction of that is well known and I certainly respect it. You say that no law means no law and that should be obvious. And I can only say Mr. Justice that to me, it is equally obvious that no law does not mean no law and I would seek to persuade the Court that that is true.

As Chief Justice Marshall said so long ago, it is a Constitution we are interpreting and all we ask for here is the construction of the Constitution in the light of the fact that it is a part of the Constitution and that there are other parts of the Constitution which grants powers and responsibilities to the executive. And that the First Amendment was not intended to make it impossible for the executive to function or to protect the security of the United States. (emphasis added)

This was exactly the notion that Souter was repeating in his speech, the realization that the Constitution, when evaluated holistically, has competing clauses which require judges to make choices between them.

In the context of the Pentagon Papers Case, under Souter’s model, the Judicial Branch was responsible for not only reconciling the contest between the newspapers and the White House but also the conflict between Article II and the First Amendment. In the end, the Court reasoned that the Nixon administration’s efforts to silence the newspapers were unconstitutional, but it did not claim that Griswold’s argument was wrong.

As Souter explains to his audience of graduates, the court “decided only that the government had not met a high burden of showing facts that could justify a prior restraint, and particular members of the court spoke of examples that might have turned the case around, to go the other way.” In essence, they disagreed with Griswold that the White House could restrain the newspapers from publishing the documents, but they agreed with him that “no law does not mean no law.”

Later in his commencement address, the retired Justice asks if such judicial actions can be considered “beyond the judicial power when a choice must be made and the Constitution has not made it in advance in so many words?” Of course, this is a rhetorical question, yet it is one which he in fact provides an answer to when he states his belief that “the court has to decide which of our approved desires [of order and security, as well as liberty and equality] has the better claim, right here, right now, and a court has to do more than read [the Constitution] fairly when it makes this kind of choice.”

Certain aspects of Souter’s argument are certainly controversial, and I personally can’t commit to agreeing with his logic entirely. However, his point of view is one that has been repeated throughout American history since the inception of the Supreme Court, and, practically speaking, the reality of the matter is that the Court historically has, presently continues to, and in the future will proceed to make choices that sometimes go beyond the contours of a literal reading of the Constitution’s words.

Whether one wishes to refer to such decision-making as appropriate judicial interpretation or activist judicial alteration is irrelevant to the fact that the legally binding consequences of such actions are the same. When the Court speaks on a matter pertaining to constitutional tensions, the document that serves as the cornerstone to our republic takes on a meaning in accordance with the Court’s opinion. This is not to suggest that the Court has law-making powers in a manner equivalent to the Legislative Branch, but the law-shaping powers that are held by the Judicial Branch, at least under Justice Souter’s perspective, are certainly impactful and not without consequence.

Contextualizing Souter’s Speech

As stated above, the significance of Justice Souter’s speech can not be understood by simply comprehending its central claims alone. It is hardly surprising that a former Supreme Court justice, speaking on the topic of judicial review to a class of graduating Harvard students, praised the powers of the Court to influence the government’s enforcement of our country’s most sacred political document. This is of course a message that has been repeated by judges throughout American history.

What makes Justice Souter’s speech worthy of remembrance is the sentiment that it brings to light, the sentiment that has manifested itself repeatedly throughout the course of American history, the sentiment that constitutional law in America can be shaped in unconventional ways through established institutions; it can dramatically depart from tradition through customary actions; it can be altered in legitimate ways that may nevertheless appear lawless. Understood in this manner, the Constitution is a malleable document insofar as it can not only be amended through lawmaking but it can also be interpretively augmented through acts that can best be referred to as higher lawmaking.

I am by no means seeking to offer a defense of unconstrained judicial activism. In fact, an historical analysis of these claims will reveal that the Judicial Branch does not act alone, and sometimes it does not act at all, in the exercise of such higher lawmaking via interpretive augmentation, and, more importantly, it will also make clear that such acts of augmentation have never been wholly unconstrained.

To understand the ways in which our Constitution has been unconventionally adapted in such a manner in the past, and the ways in which it can continue to be in the future, we need to revisit the creation of the document itself and the very beginnings of higher lawmaking in America. For we celebrate the legitimacy of our Constitution’s ratification, yet we have long since forgotten the illegality of it.


This post is Part 1 in a series of posts that will address the concept of higher lawmaking and how higher lawmaking has been exercised throughout American history. Part 2 will discuss the ratification of the Constitution, and how it not only marked the beginning of the American system of government that we inherited but also the start of higher lawmaking in America as we know it today. 

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