潇湘渌水 @ 2010-08-02 17:37
最高法院退休法官David Souter2010年在哈佛毕业演讲，最后一部分，来自阮一峰翻译：
下面，我来做个总结。《宪法》被机械地精确解读，实际上是不可能的。一方面，《宪法》保障多种权利，没有一个统一的原则，解决各种权利之间的冲突。 另一方面，世界在变化，法官有自己的见解，不可能像机器人一样，根据事实，对照条文，做出一成不变的判决。
认识到一点，也许会令某些人失望，但是这恰恰反映了我们的愿望和信心，那就是可以找到一种方法，公平合理地解决冲突。人类渴望确定性，渴望一个没有 模棱两可的世界，渴望有些东西保持永恒不变。但是，正如Holmes法官所说，确定性是一种幻觉，静止不变不是我们的命运。
作为法官，我们需要领会《宪法》起草者的精神，不仅仅依据《宪法》的字面意思，更要依据起草者这样写的理由。法官必须生活在这样一种代代相传的信任 关系中，除此之外，我不知道还有其他方法，可以完成美国人民对于法官的期望。
Let me, like the lawyer that I am, sum up the case I've tried to present this afternoon. The fair reading model fails to account for what the Constitution actually says and fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. Not even its most uncompromising and unconditional language can resolve the potential tension of one provision with another, tension the Constitution's Framers left to be resolved another day; and another day after that, for our cases can give no answers that fits all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world. These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments.
The fair reading model has all that to answer for, but more than just that. For the tensions that are the stuff of judging in so many hard constitutional cases are, after all, the products of our aspirations to value liberty, as well as order, and fairness and equality, as well as liberty. And the very opportunity for conflict between the good and the good reflects our confidence that a way may be found to resolve it when a conflict arises. That is why the simplistic view of the Constitution devalues those aspirations, and attacks that confidence, and diminishes us. It is a model of judging that means to discourage our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the Nation has made.
So, it is tempting to dismiss the critical rhetoric of law making and activism as simply a rejection of at least some of the hopes we profess to share as the American people. But there is one thing more. I have to believe that something deeper is involved, and that behind most dreams of a simpler Constitution lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, if not years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don't forget my own longings which heartily resisted the pronouncement of Justice Holmes, which I read as an undergraduate, that certainty generally is illusion and repose is not our destiny.
But I have come to understand that he was right, and by the same token I understand that I differ from the critics I've described not merely in seeing the patent wisdom of the Brown decision, or in espousing the rule excluding unlawfully seized evidence, or in understanding the scope of habeas corpus. Where I suspect we differ most fundamentally is in my belief that in an indeterminate world I cannot control it is possible to live fully in the trust that a way will be found leading through the uncertain future. And to me, the future of the Constitution as the Framers wrote it can be staked only upon that same trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason that respects the words the Framers wrote, by facing facts, and by seeking to understand their meaning for the living.
That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.
下面，我来做个总结。《宪法》被机械地精确解读，实际上是不可能的。一方面，《宪法》保障多种权利，没有一个统一的原则，解决各种权利之间的冲突。 另一方面，世界在变化，法官有自己的见解，不可能像机器人一样，根据事实，对照条文，做出一成不变的判决。
认识到一点，也许会令某些人失望，但是这恰恰反映了我们的愿望和信心，那就是可以找到一种方法，公平合理地解决冲突。人类渴望确定性，渴望一个没有 模棱两可的世界，渴望有些东西保持永恒不变。但是，正如Holmes法官所说，确定性是一种幻觉，静止不变不是我们的命运。
作为法官，我们需要领会《宪法》起草者的精神，不仅仅依据《宪法》的字面意思，更要依据起草者这样写的理由。法官必须生活在这样一种代代相传的信任 关系中，除此之外，我不知道还有其他方法，可以完成美国人民对于法官的期望。
Let me, like the lawyer that I am, sum up the case I've tried to present this afternoon. The fair reading model fails to account for what the Constitution actually says and fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. Not even its most uncompromising and unconditional language can resolve the potential tension of one provision with another, tension the Constitution's Framers left to be resolved another day; and another day after that, for our cases can give no answers that fits all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world. These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments.
The fair reading model has all that to answer for, but more than just that. For the tensions that are the stuff of judging in so many hard constitutional cases are, after all, the products of our aspirations to value liberty, as well as order, and fairness and equality, as well as liberty. And the very opportunity for conflict between the good and the good reflects our confidence that a way may be found to resolve it when a conflict arises. That is why the simplistic view of the Constitution devalues those aspirations, and attacks that confidence, and diminishes us. It is a model of judging that means to discourage our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the Nation has made.
So, it is tempting to dismiss the critical rhetoric of law making and activism as simply a rejection of at least some of the hopes we profess to share as the American people. But there is one thing more. I have to believe that something deeper is involved, and that behind most dreams of a simpler Constitution lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, if not years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don't forget my own longings which heartily resisted the pronouncement of Justice Holmes, which I read as an undergraduate, that certainty generally is illusion and repose is not our destiny.
But I have come to understand that he was right, and by the same token I understand that I differ from the critics I've described not merely in seeing the patent wisdom of the Brown decision, or in espousing the rule excluding unlawfully seized evidence, or in understanding the scope of habeas corpus. Where I suspect we differ most fundamentally is in my belief that in an indeterminate world I cannot control it is possible to live fully in the trust that a way will be found leading through the uncertain future. And to me, the future of the Constitution as the Framers wrote it can be staked only upon that same trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason that respects the words the Framers wrote, by facing facts, and by seeking to understand their meaning for the living.
That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.
