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“The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time,” Justice Souter said.” Another reason,” he said, “is that the Constitution contains values that may well exist in tension with each other, not in harmony.” Yet another reason, he added, is that “constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them.”
“[T]he Constitution is no simple contract,” the justice said, “not because it uses a certain amount of open-ended language, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, altogether, all at once.” He then explained: “The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises.”
“A choice may have to be made,” the former justice continued, “not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways … Should the choice and its explanation be called illegitimate law making? Can it be an act beyond the judicial power when a choice must be made and the Constitution has not made it in advance in so many words? So much for the notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly.”
