This historical example illustrates that law should mean what it says, not what some justices think it should say or mean. If a law is outdated, than we should change it, not just impose “new realities” thru judicial dictat.
The former justice's logic would justify Plessy v. Ferguson.
At the recent Harvard commencement, retired Supreme Court Justice David Souter attacked what he regards as the "simplistic" model of giving the Constitution a "fair reading." A judge, he said, must determine which of the conflicting constitutional values should become our fundamental law by taking account of new social realities. His remarks were a thinly veiled assault on those who think the Constitution should be interpreted according to its original meaning.
Justice Souter actually provided a primer on how not to be a judge. He made up a Constitution that never was to justify a kind of judicial power that was never intended.
We should reflect on the great suffering and injustice that a failure to follow the original meaning of the 14th and 15th Amendments caused to so many for almost a century. While we believe that an originalist reading of the Constitution also supports Brown, the salient point here is that Brown would not have had such central importance had the Reconstruction-era amendments been enforced according to their original meaning. The greater economic and voting power that enforcement would have ensured would likely have prevented the caste system of public education in the South.
Justice Souter recognizes that his method of interpreting the Constitution is indeterminate, but he argues that it is necessary to put our trust in justices to reach just results. The historical reality is that this interpretive method permitted justices to create a Constitution of their own contrivance in the service of injustice.