无老师题：新托福作文的准备，初期的时候，各位考友发愁的是写什么，慢慢的通过《20天汉译英作文法》，考友们发现，写出自己想表达的意思已经轻车熟路了。但是，很快的又发现，自己的分数就是在23分左右上下徘徊，这没办法，李笑来的那本《高分作文》，就只有这个水平，而且这还是截止至今，中国大陆的托福作文书的最高水平了。因此，要想突破，就必须要找超越托福考试的材料来指导各位考友们的作文准备。
今天这份材料，就是一份很好的，文笔优美，用词儒雅，行文流畅，逻辑清晰的演讲文章，里面很多观点和例子都适合各位考友直接拿过来用在自己的作文之内，其中适合做新托福作文模板的一些句子，已经用粗体字进行标注，如果你看到的不是粗体字版，请回到无老师网站查找原文。
不仅如此，因为文章整体逻辑性很强，也对于各位考友规范自己的逻辑思维之分有帮助，因此建议各位考友一定要好好注意一下里面的逻辑是如何顺承和连接的，你一定会很有收获的！
【演讲人介绍】
戴维·哈维特·苏特（David Souter，1939年9月17日－），自1990年出任美国最高法院大法官，直至于2009年6月29日退休。他1961年毕业于哈佛学院，1966年毕业于哈佛法学院。
【正文】
我年轻时，曾经遇到过一个1885级的哈佛学长。他告诉我，有一年夏天，他来到哈佛广场，路上碰见一个应届毕业生。只见那个毕业生举着文凭大喊："上帝保佑，总算学完了"。
即使哈佛大学给我颁发荣誉博士学位，我也不敢冲着各位这样喊。但是，校方希望我谈谈在最高法院的19年经历，那么我接下来就以一个退休法官的身份，说说我对美国《宪法》、以及法官如何实施《宪法》的认识。
现在，社会上有一种批评，认为最高法院在创造法律，在做出一些《宪法》中找不到依据的裁决。我认为，这种批评太片面，没有理解宪法和最高法院判决的重点。
那些批评者似乎有一种印象，认为《宪法》就是一个模板，公民和政府只要在《宪法》中找到特定的条款，就能认定自己的权利受到宪法保护。根据这种认识，判决宪法案件就成了一字一句机械地解读《宪法》，以及对证据的客观检验。
当然，某些情况下，确实应该一字一句地解读《宪法》。比如，在座的毕业生同学，你们不少人现在刚满21岁，假定你们想去竞选美国参议员的席位。对照一下《宪法》，你就会知道这个决定不会得到法院的认可。因为《宪法》明文规定，参议员必须年满30岁。但是，法院遇到的案件，并不都是这么容易判断，尤其是在最高法院这一级，《宪法》的"精确解读"模式很难完全适用。
参议员必须年满30岁，这种条款是一清二楚的。但是，《宪法》还有很多条款，故意写成可以被开放式解读，比如"正当程序原则"、"平等保护原则"、"免于不合理搜查的权力"等等。这些条款必须根据不同的案件，更深入地解读，形成不同的判例。长此以往，判例就成了新的原则，而《宪法》对这些原则并没有提及。
一般来说，《宪法》不能以机械方式解读的原因有三个。首先，《宪法》使用的是概括性表达。其次，《宪法》中包括互相冲突的价值观。最后，同样的事实在不同的历史背景中，有不一样的含义。这些因素导致判决宪法案件的难度很大。下面，我举两个案例来说明这一点。
第一个案例将会展示，《宪法》并不是一个简单的合约。它同时保障了多种权利，这些权利有时会发生互相冲突，不可能同时实现。
你们中的许多人，可能还记得这个案例。1971年6月26日，一批五角大楼的机密文件泄露，《纽约时报》和《华盛顿邮报》各自拿到了副本，准备刊登。美国联邦政府紧急上诉到最高法院，要求发布禁令，报社不得刊登这些文件。《宪法》明文保证言论自由，政府的这种上诉是对这个原则的挑战。
政府的诉讼代理人是哈佛大学法学院院长Irwin Griswold，他当时担任司法部副部长。主持当天庭审的是Black法官，他是罗斯福总统在新政时期任命的第一位法官。他们两人对于《宪法第一修正案》激烈交锋。《第一修正案》清楚写明："国会不得颁发任何法律，剥夺言论自由或出版自由"。虽然从文字上看，这一条只是针对国会，但是被理解成对美国政府和美国总统都有效。Black法官从字面上解读了这个条款，认为"不得颁发任何法律"就是不存在任何例外，对言论自由和出版自由的保障是绝对的。对于他来说，这一条与"参议员必须年满30岁"的规定是一样清晰的。
但是，Griswold院长不这样认为。他争辩，如果某种出版物会对国家安全造成不可弥补的损害，发布禁令就是符合《宪法》精神的。他向法庭申明，如果这些文件被公开，美军将出现更大的伤亡，危及越南战争的和谈，以及交换战俘的进程，大大削弱政府在停战谈判中的筹码。
Black法官回答，如果根据是否危害国家安全，来判断哪些东西可以出版，哪些东西不可以出版，那么法官就变成审查员了。Griswold院长说，为了国家安全，别无其他选择。Black法官说，遵守《第一修正案》就是一个选择。接下来，Griswold院长说了一段精彩的回复：
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"这个案件的关键是《第一修正案》。尊敬的法官大人，您的立场众所周知，我也尊重这一点。您认为显而易见，'不得颁发任何法律'就是不得颁发任何法律。但是，我的理解并非如此，我希望自己可以说服法庭，采用我的观点。正如Marshall大法官说过的，我们必须把《宪法》当作一个整体解读......"
最终，联邦政府输掉了这场官司，那些文件还是刊登出来了。但是，Griswold院长的理由，却比Black法官的理由更合理。就像他说的，"不得颁发任何法律"并不必然意味着不得颁发任何法律，因为《第一修正案》只是《宪法》的一个组成部分。《宪法》既保证了言论自由，也授权美国政府保卫国家安全，授予美国总统制订外交政策和发布军事命令的权力。
虽然Griswold院长没能让法庭接受他的要求，但是法庭确实意识到，某些时刻政府有权限制出版自由。之所以政府会输掉这场官司，并不是因为"不得颁发任何法律"是一条绝对的规定，不得有任何例外，而是因为大多数法官认为，政府没有举出足够的可信事实，证明禁令的必要性。Brennan法官说过，如果某份文件的出版，会导致诺曼底登陆失败，或导致核弹爆炸，那么最高法院可能会发布禁令。
所以，即使《第一修正案》这么明确的表达，都不构成对于绝对自由的保证。因为《宪法》必须作为一个整体解读，其他价值可能会与言论自由原则发生冲突。换言之，《宪法》同时保障了多种权利，却没有提出如何解决它们之间的冲突。所以，法官必须做出选择。《宪法》体现了美国人民的意愿，我们既需要秩序和安全，也需要自由。当两种愿望冲突的时候，法官被迫决定，哪一个愿望更值得支持。他必须从整体上运用法律。"五角大楼文件案"可以更完整地告诉我们，法律是什么。
但是，这种法官的自行解读是不是非法的呢？是不是超越了司法的权力？我不再说下去了，关于法官如何解读《宪法》就说到这里。
下面来看第二个案例。它不是关于《宪法》内部的冲突，而是关于同一个事实可以根据《宪法》有不同的解释。这个案例也很著名，各位大概还记得1954年Brown起诉美国教育部。最后，最高法院一致同意，公立学校中的种族隔离是违宪的，违反了《宪法》的"平等保护原则"。
这个案例结束了美国的种族隔离时代，开辟了人人平等的时代。但是，1896年还有一个类似的案例Plessy v. Ferguson，最高法院的裁决是，铁路公司的"黑人专用"车厢是合乎宪法的，白人和黑人可以被隔离在不同的车厢。Plessy起诉说，这是对黑人的歧视；最高法院回答说，这只是黑人自己的想像。可是60年后，最高法院却改变了看法，认为学校将黑人和白人区别对待，是不平等的。
那些认为《宪法》应该被一成不变解读的人，一定觉得1954年的判决是错的。因为美国法庭不可能在1896年判决"种族隔离"制度违宪，而从1896年到1954年，《宪法》的相关条文一个字都没变，所以1954年也不应该判决"种族隔离"制度违宪。1896年的案例是关于铁路车厢，1954年的案例是关于学校教育，本质上不存在很大的差异。那么为什么仅仅因为发生在不同的年份，最高法院就做出了不同的判决呢？
原因是，1896年的时候，人们还没有忘记奴隶制。对于那一代人来说，黑人和白人能够坐在同一列火车上，就已经算是进步了。但是，1954年的人们没有奴隶制的经历，不会把奴隶制度与种族隔离进行比较，所以法官会在《宪法》中读出前辈们没有读出的含义。这表明，判决与法官的经历有关，取决于他们自己的判断。
1954年的法官是不是创造了法律，做出了一个《宪法》中没有的结论？对同一件事做出不同的判决，是不是法官的个人意志在起作用？好了，关于法官对客观事实的解读，我就说到这里。
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。
FULL TEXT:
When I was younger I used to hear Harvard stories from a member of the class of 1885. Back then, old graduates of the College who could get to Cambridge on Commencement Day didn't wait for reunion years to come back to the Yard. They'd just turn up, see old friends, look over the new crop, and have a cup of Commencement punch under the elms. The old man remembered one of those summer days when he was heading for the Square after lunch and crossed paths with a newly graduated senior, who had enjoyed quite a few cups of that punch. As the two men approached each other the younger one thrust out his new diploma and shouted, "Educated, by God."
Even with an honorary Harvard doctorate in my hands I know enough not to shout that across the Yard, but the University's generosity does make me bold enough to say that over the course of nineteen years on the（这里的I全要换成其他人！） Supreme Court, I learned some lessons about the Constitution of the United States, and about what judges do when they apply it in deciding cases with constitutional issues. I'm going to draw on that experience in the course of the next few minutes, for it is as a judge that I have been given the honor to speak this before you（I和you也全要进行替换！）.
The occasion for our coming together like this aligns with the approach of two separate events on the judicial side of the（作文金句啊！）national public life: the end of the Supreme Court's Term, with its quickened pace of decisions, and a confirmation proceeding for the latest nominee to fill a seat on the Court. We will as a consequence be hearing and discussing a particular sort of（用在第一段很棒） criticism that is frequently aimed at the more controversial Supreme Court decisions: criticism that the Court is making up the law, that the Court is announcing constitutional rules that cannot be found in the Constitution, and that the Court is engaging in activism to extend civil liberties. A good many of us, I'm sure a good many of us here^_^, intuitively react that this sort of commentary tends to miss the mark. But we don't often pause to consider in any detail the conceptions of the Constitution and of constitutional judging that underlie the critical rhetoric, or to compare them with the notions that lie behind our own intuitive responses. I'm going to try to make some of those comparisons this afternoon.
The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution and on a template for deciding constitutional claims that go together something like this. A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution. The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed. The facts on their face either do or do not support the claim. If they do, the court gives judgment for the claimant; if they don't judgment goes to the party contesting the claim. On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.
There are, of course, constitutional claims that would be decided just about the way this fair reading model would have it. If one of today's 21 year old college graduates claimed a place on the ballot for one of the United States Senate seats open this year, the claim could be disposed of simply by showing the person's age, quoting the constitutional provision that a Senator must be at least 30 years old, and interpreting that requirement to forbid access to the ballot to someone who could not qualify to serve if elected. No one would be apt to claim that lawmaking was going on, or object that the age requirement did not say anything about ballot access. The fair reading model would describe pretty much what happened. But cases like this do not usually come to court, or at least the Supreme Court, and for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.
Even a moment's thought is enough to show why it is so unrealistic. The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30 year-old senators; they require more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that（这么长的论理句，估计很多GRE考友都会喜欢，更别提托福考友了） the Constitution does not mention.
But this explanation hardly scratches the surface. 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. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony. Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person's age or the amount of the grocery bill; 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. And this can be tricky. To show you what I'm getting at I've picked two examples of what can really happen, two stories of two great cases. The two stories won't, of course, give anything like a complete description either of the Constitution or of judging, but I think they will show how unrealistic the fair reading model can be.
The first story is about what the Constitution is like. It's going to show that the Constitution is no simple contract, 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.
The story is about a case that many of us here remember. It was argued before the Supreme Court of the United States on June 26, 1971, and is known as The Pentagon Papers. The New York Times and the Washington Post had each obtained copies of classified documents prepared and compiled by（举例金句！） government officials responsible for conducting the Vietnam War. The newspapers intended to publish some of those documents, and the government sought a court order forbidding the publication.
The issue had arisen in great haste, and had traveled from trial courts to the Supreme Court, not over the course of months, but in a matter of days. The time was one of high passion, and the claim made by the United States was the most extreme claim known to the constitutional doctrines of freedom to speak and publish. The Government said it was entitled to a prior restraint, an order forbidding publication in the first place, not merely one imposing a penalty for unlawful publication after the words were out. The argument included an exchange between a great lawyer appearing for the Government and a great judge, and the colloquy between them was one of those instances of a grain of sand that reveals a universe.
The great lawyer for the United States was a man who had spent many Commencement mornings in this Yard. He was Irwin Griswold, Dean of the Law School for 21 years, who was serving a stint as Solicitor General of the United States. The great judge who questioned the Dean that day was Mr. Justice Black, the first of the New Deal justices, whom Justice Cardozo described as having one of the most brilliant legal minds he had ever met with. The constitutional provision on which their exchange centered was the First Amendment, which includes the familiar words that "Congress shall make no law... abridging the freedom of speech, or of the press." Although that language by its literal terms forbade Congress from legislating to abridge free expression, the guarantees were understood to bind the whole government, and to limit what the President could ask a court to do. As for the remainder of the provision, though, Justice Black professed to read it literally. When it said there shall be no law allowed, it left no room for any exception; the prohibition against abridging freedom of speech and press was absolute. And in fairness to him, one must say that on their face the First Amendment clauses seem as clear as the requirement for 30 year old senators, and that no guarantee of the Bill of Rights is more absolute in form.
But that was not the end of the matter for Dean Griswold. Notwithstanding the language, he urged the Court to say that a restraint would be constitutional when publication threatened irreparable harm to the security of the United States, and he contended there was enough in the record to show just that; he argued that the intended publications would threaten lives, and jeopardize the process of trying to end the war and recover prisoners, and erode the government's capacity to negotiate with foreign governments and through foreign governments in the future.
Justice Black responded that if a court could suppress publication when the risk to the national interest was great enough, the judges would be turned into censors. Dean Griswold said he did not know of any alternative. Justice Black shot back that respecting the First Amendment might be the alternative, and to that, Dean Griswold replied in words I cannot resist quoting:
"The problem in this case," he said, "is the construction of the First Amendment.
"Now Mr. Justice, 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. 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..."
The Government lost the case and the newspapers published（举例用）, but Dean Griswold won his argument with Justice Black. To show, as he put it, that "no law" did not mean "no law," Dean Griswold had pointed out that the First Amendment was not the whole Constitution. The Constitution also granted authority to the government to provide for the security of the nation, and authority to the President to manage foreign policy and command the military.
And although he failed to convince the Court that the capacity to exercise these powers would be seriously affected by publication of the papers, the Court did recognize that at some point the authority to govern that Dean Griswold invoked could limit the right to publish. The Court did not decide the case on the ground that the words "no law" allowed of no exception and meant that the rights of expression were absolute. The Court's majority 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 to go the other way. Threatened publication of something like the D-Day invasion plans could have been enjoined; Justice Brennan mentioned a publication that would risk a nuclear holocaust in peacetime.
Even the First Amendment, then, expressing the value of speech and publication in the terms of a right as paramount as any fundamental right can be, does not quite get to the point of an absolute guarantee. It fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish, the value of security for the nation and the value of the President's authority in matters foreign and military. 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. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary. A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice. Choices like the ones the Justices envisioned in the Papers case make up much of what we call law.
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.
Now let me tell a second story, not one illustrating the tensions within constitutional law, but one showing the subtlety of（引起另一个话题，用于第3段段首） constitutional facts. Again the story is about a famous case, and a good many of us here remember this one, too: Brown v. Board of Education from 1954, in which the Supreme Court unanimously held that racial segregation in public schools imposed by law was unconstitutional, as violating the guarantee of equal protection of the law.
Brown ended the era of separate-but-equal, whose paradigm was the decision in 1896 of the case called Plessy v. Ferguson, where the Supreme Court had held it was no violation of the equal protection guarantee to require black people to ride in a separate railroad car that was physically equal to the car for whites. One argument offered in Plessy was that the separate black car was a badge of inferiority, to which the Court majority responded that if black people viewed it that way; the implication was merely a product of their own minds. Sixty years later, Brown held that a segregated school required for black children was inherently unequal.
For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision. Those who look to that model are unlikely 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 point 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 more 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. That meaning is not captured by descriptions of physically identical schools or physically identical railroad cars. The meaning of facts arises elsewhere and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page. And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: it expressed a judgment of inherent inferiority on the part of the minority race. The judges who understood the meaning that was apparent in 1954 would have violated their oaths to uphold the Constitution if they had not held the segregation mandate unconstitutional.
Did the judges of 1954 cross some line of legitimacy into law making, stating a conclusion that you will not find written in the Constitution? Was it activism to act based on the current meaning of facts that at a purely objective level were about the same as Plessy's facts 60 years before? So much for the assumption that facts just lie there waiting for an objective judge to view them.
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（承接句） 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（递进）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（文章末尾主题句，I要换成everyone） United States.
原文地址：http://www.ruanyifeng.com/blog/2010/06/remarks_of_david_souter_in_harvard_commencement_2010.html相关文章推荐：
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【演讲人介绍】
戴维·哈维特·苏特（David Souter，1939年9月17日－），自1990年出任美国最高法院大法官，直至于2009年6月29日退休。他1961年毕业于哈佛学院，1966年毕业于哈佛法学院。
【正文】
我年轻时，曾经遇到过一个1885级的哈佛学长。他告诉我，有一年夏天，他来到哈佛广场，路上碰见一个应届毕业生。只见那个毕业生举着文凭大喊："上帝保佑，总算学完了"。
即使哈佛大学给我颁发荣誉博士学位，我也不敢冲着各位这样喊。但是，校方希望我谈谈在最高法院的19年经历，那么我接下来就以一个退休法官的身份，说说我对美国《宪法》、以及法官如何实施《宪法》的认识。
现在，社会上有一种批评，认为最高法院在创造法律，在做出一些《宪法》中找不到依据的裁决。我认为，这种批评太片面，没有理解宪法和最高法院判决的重点。
那些批评者似乎有一种印象，认为《宪法》就是一个模板，公民和政府只要在《宪法》中找到特定的条款，就能认定自己的权利受到宪法保护。根据这种认识，判决宪法案件就成了一字一句机械地解读《宪法》，以及对证据的客观检验。
当然，某些情况下，确实应该一字一句地解读《宪法》。比如，在座的毕业生同学，你们不少人现在刚满21岁，假定你们想去竞选美国参议员的席位。对照一下《宪法》，你就会知道这个决定不会得到法院的认可。因为《宪法》明文规定，参议员必须年满30岁。但是，法院遇到的案件，并不都是这么容易判断，尤其是在最高法院这一级，《宪法》的"精确解读"模式很难完全适用。
参议员必须年满30岁，这种条款是一清二楚的。但是，《宪法》还有很多条款，故意写成可以被开放式解读，比如"正当程序原则"、"平等保护原则"、"免于不合理搜查的权力"等等。这些条款必须根据不同的案件，更深入地解读，形成不同的判例。长此以往，判例就成了新的原则，而《宪法》对这些原则并没有提及。
一般来说，《宪法》不能以机械方式解读的原因有三个。首先，《宪法》使用的是概括性表达。其次，《宪法》中包括互相冲突的价值观。最后，同样的事实在不同的历史背景中，有不一样的含义。这些因素导致判决宪法案件的难度很大。下面，我举两个案例来说明这一点。
第一个案例将会展示，《宪法》并不是一个简单的合约。它同时保障了多种权利，这些权利有时会发生互相冲突，不可能同时实现。
你们中的许多人，可能还记得这个案例。1971年6月26日，一批五角大楼的机密文件泄露，《纽约时报》和《华盛顿邮报》各自拿到了副本，准备刊登。美国联邦政府紧急上诉到最高法院，要求发布禁令，报社不得刊登这些文件。《宪法》明文保证言论自由，政府的这种上诉是对这个原则的挑战。
政府的诉讼代理人是哈佛大学法学院院长Irwin Griswold，他当时担任司法部副部长。主持当天庭审的是Black法官，他是罗斯福总统在新政时期任命的第一位法官。他们两人对于《宪法第一修正案》激烈交锋。《第一修正案》清楚写明："国会不得颁发任何法律，剥夺言论自由或出版自由"。虽然从文字上看，这一条只是针对国会，但是被理解成对美国政府和美国总统都有效。Black法官从字面上解读了这个条款，认为"不得颁发任何法律"就是不存在任何例外，对言论自由和出版自由的保障是绝对的。对于他来说，这一条与"参议员必须年满30岁"的规定是一样清晰的。
但是，Griswold院长不这样认为。他争辩，如果某种出版物会对国家安全造成不可弥补的损害，发布禁令就是符合《宪法》精神的。他向法庭申明，如果这些文件被公开，美军将出现更大的伤亡，危及越南战争的和谈，以及交换战俘的进程，大大削弱政府在停战谈判中的筹码。
Black法官回答，如果根据是否危害国家安全，来判断哪些东西可以出版，哪些东西不可以出版，那么法官就变成审查员了。Griswold院长说，为了国家安全，别无其他选择。Black法官说，遵守《第一修正案》就是一个选择。接下来，Griswold院长说了一段精彩的回复：
id_XMTgwMDU3OTIw.html
"这个案件的关键是《第一修正案》。尊敬的法官大人，您的立场众所周知，我也尊重这一点。您认为显而易见，'不得颁发任何法律'就是不得颁发任何法律。但是，我的理解并非如此，我希望自己可以说服法庭，采用我的观点。正如Marshall大法官说过的，我们必须把《宪法》当作一个整体解读......"
最终，联邦政府输掉了这场官司，那些文件还是刊登出来了。但是，Griswold院长的理由，却比Black法官的理由更合理。就像他说的，"不得颁发任何法律"并不必然意味着不得颁发任何法律，因为《第一修正案》只是《宪法》的一个组成部分。《宪法》既保证了言论自由，也授权美国政府保卫国家安全，授予美国总统制订外交政策和发布军事命令的权力。
虽然Griswold院长没能让法庭接受他的要求，但是法庭确实意识到，某些时刻政府有权限制出版自由。之所以政府会输掉这场官司，并不是因为"不得颁发任何法律"是一条绝对的规定，不得有任何例外，而是因为大多数法官认为，政府没有举出足够的可信事实，证明禁令的必要性。Brennan法官说过，如果某份文件的出版，会导致诺曼底登陆失败，或导致核弹爆炸，那么最高法院可能会发布禁令。
所以，即使《第一修正案》这么明确的表达，都不构成对于绝对自由的保证。因为《宪法》必须作为一个整体解读，其他价值可能会与言论自由原则发生冲突。换言之，《宪法》同时保障了多种权利，却没有提出如何解决它们之间的冲突。所以，法官必须做出选择。《宪法》体现了美国人民的意愿，我们既需要秩序和安全，也需要自由。当两种愿望冲突的时候，法官被迫决定，哪一个愿望更值得支持。他必须从整体上运用法律。"五角大楼文件案"可以更完整地告诉我们，法律是什么。
但是，这种法官的自行解读是不是非法的呢？是不是超越了司法的权力？我不再说下去了，关于法官如何解读《宪法》就说到这里。
下面来看第二个案例。它不是关于《宪法》内部的冲突，而是关于同一个事实可以根据《宪法》有不同的解释。这个案例也很著名，各位大概还记得1954年Brown起诉美国教育部。最后，最高法院一致同意，公立学校中的种族隔离是违宪的，违反了《宪法》的"平等保护原则"。
这个案例结束了美国的种族隔离时代，开辟了人人平等的时代。但是，1896年还有一个类似的案例Plessy v. Ferguson，最高法院的裁决是，铁路公司的"黑人专用"车厢是合乎宪法的，白人和黑人可以被隔离在不同的车厢。Plessy起诉说，这是对黑人的歧视；最高法院回答说，这只是黑人自己的想像。可是60年后，最高法院却改变了看法，认为学校将黑人和白人区别对待，是不平等的。
那些认为《宪法》应该被一成不变解读的人，一定觉得1954年的判决是错的。因为美国法庭不可能在1896年判决"种族隔离"制度违宪，而从1896年到1954年，《宪法》的相关条文一个字都没变，所以1954年也不应该判决"种族隔离"制度违宪。1896年的案例是关于铁路车厢，1954年的案例是关于学校教育，本质上不存在很大的差异。那么为什么仅仅因为发生在不同的年份，最高法院就做出了不同的判决呢？
原因是，1896年的时候，人们还没有忘记奴隶制。对于那一代人来说，黑人和白人能够坐在同一列火车上，就已经算是进步了。但是，1954年的人们没有奴隶制的经历，不会把奴隶制度与种族隔离进行比较，所以法官会在《宪法》中读出前辈们没有读出的含义。这表明，判决与法官的经历有关，取决于他们自己的判断。
1954年的法官是不是创造了法律，做出了一个《宪法》中没有的结论？对同一件事做出不同的判决，是不是法官的个人意志在起作用？好了，关于法官对客观事实的解读，我就说到这里。
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。
FULL TEXT:
When I was younger I used to hear Harvard stories from a member of the class of 1885. Back then, old graduates of the College who could get to Cambridge on Commencement Day didn't wait for reunion years to come back to the Yard. They'd just turn up, see old friends, look over the new crop, and have a cup of Commencement punch under the elms. The old man remembered one of those summer days when he was heading for the Square after lunch and crossed paths with a newly graduated senior, who had enjoyed quite a few cups of that punch. As the two men approached each other the younger one thrust out his new diploma and shouted, "Educated, by God."
Even with an honorary Harvard doctorate in my hands I know enough not to shout that across the Yard, but the University's generosity does make me bold enough to say that over the course of nineteen years on the（这里的I全要换成其他人！） Supreme Court, I learned some lessons about the Constitution of the United States, and about what judges do when they apply it in deciding cases with constitutional issues. I'm going to draw on that experience in the course of the next few minutes, for it is as a judge that I have been given the honor to speak this before you（I和you也全要进行替换！）.
The occasion for our coming together like this aligns with the approach of two separate events on the judicial side of the （作文金句啊！）national public life: the end of the Supreme Court's Term, with its quickened pace of decisions, and a confirmation proceeding for the latest nominee to fill a seat on the Court. We will as a consequence be hearing and discussing a particular sort of（用在第一段很棒） criticism that is frequently aimed at the more controversial Supreme Court decisions: criticism that the Court is making up the law, that the Court is announcing constitutional rules that cannot be found in the Constitution, and that the Court is engaging in activism to extend civil liberties. A good many of us, I'm sure a good many of us here^_^, intuitively react that this sort of commentary tends to miss the mark. But we don't often pause to consider in any detail the conceptions of the Constitution and of constitutional judging that underlie the critical rhetoric, or to compare them with the notions that lie behind our own intuitive responses. I'm going to try to make some of those comparisons this afternoon.
The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution and on a template for deciding constitutional claims that go together something like this. A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution. The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed. The facts on their face either do or do not support the claim. If they do, the court gives judgment for the claimant; if they don't judgment goes to the party contesting the claim. On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.
There are, of course, constitutional claims that would be decided just about the way this fair reading model would have it. If one of today's 21 year old college graduates claimed a place on the ballot for one of the United States Senate seats open this year, the claim could be disposed of simply by showing the person's age, quoting the constitutional provision that a Senator must be at least 30 years old, and interpreting that requirement to forbid access to the ballot to someone who could not qualify to serve if elected. No one would be apt to claim that lawmaking was going on, or object that the age requirement did not say anything about ballot access. The fair reading model would describe pretty much what happened. But cases like this do not usually come to court, or at least the Supreme Court, and for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.
Even a moment's thought is enough to show why it is so unrealistic. The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30 year-old senators; they require more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that（这么长的论理句，估计很多GRE考友都会喜欢，更别提托福考友了） the Constitution does not mention.
But this explanation hardly scratches the surface. 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. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony. Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person's age or the amount of the grocery bill; 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. And this can be tricky. To show you what I'm getting at I've picked two examples of what can really happen, two stories of two great cases. The two stories won't, of course, give anything like a complete description either of the Constitution or of judging, but I think they will show how unrealistic the fair reading model can be.
The first story is about what the Constitution is like. It's going to show that the Constitution is no simple contract, 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.
The story is about a case that many of us here remember. It was argued before the Supreme Court of the United States on June 26, 1971, and is known as The Pentagon Papers. The New York Times and the Washington Post had each obtained copies of classified documents prepared and compiled by（举例金句！） government officials responsible for conducting the Vietnam War. The newspapers intended to publish some of those documents, and the government sought a court order forbidding the publication.
The issue had arisen in great haste, and had traveled from trial courts to the Supreme Court, not over the course of months, but in a matter of days. The time was one of high passion, and the claim made by the United States was the most extreme claim known to the constitutional doctrines of freedom to speak and publish. The Government said it was entitled to a prior restraint, an order forbidding publication in the first place, not merely one imposing a penalty for unlawful publication after the words were out. The argument included an exchange between a great lawyer appearing for the Government and a great judge, and the colloquy between them was one of those instances of a grain of sand that reveals a universe.
The great lawyer for the United States was a man who had spent many Commencement mornings in this Yard. He was Irwin Griswold, Dean of the Law School for 21 years, who was serving a stint as Solicitor General of the United States. The great judge who questioned the Dean that day was Mr. Justice Black, the first of the New Deal justices, whom Justice Cardozo described as having one of the most brilliant legal minds he had ever met with. The constitutional provision on which their exchange centered was the First Amendment, which includes the familiar words that "Congress shall make no law... abridging the freedom of speech, or of the press." Although that language by its literal terms forbade Congress from legislating to abridge free expression, the guarantees were understood to bind the whole government, and to limit what the President could ask a court to do. As for the remainder of the provision, though, Justice Black professed to read it literally. When it said there shall be no law allowed, it left no room for any exception; the prohibition against abridging freedom of speech and press was absolute. And in fairness to him, one must say that on their face the First Amendment clauses seem as clear as the requirement for 30 year old senators, and that no guarantee of the Bill of Rights is more absolute in form.
But that was not the end of the matter for Dean Griswold. Notwithstanding the language, he urged the Court to say that a restraint would be constitutional when publication threatened irreparable harm to the security of the United States, and he contended there was enough in the record to show just that; he argued that the intended publications would threaten lives, and jeopardize the process of trying to end the war and recover prisoners, and erode the government's capacity to negotiate with foreign governments and through foreign governments in the future.
Justice Black responded that if a court could suppress publication when the risk to the national interest was great enough, the judges would be turned into censors. Dean Griswold said he did not know of any alternative. Justice Black shot back that respecting the First Amendment might be the alternative, and to that, Dean Griswold replied in words I cannot resist quoting:
"The problem in this case," he said, "is the construction of the First Amendment.
"Now Mr. Justice, 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. 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..."
The Government lost the case and the newspapers published（举例用）, but Dean Griswold won his argument with Justice Black. To show, as he put it, that "no law" did not mean "no law," Dean Griswold had pointed out that the First Amendment was not the whole Constitution. The Constitution also granted authority to the government to provide for the security of the nation, and authority to the President to manage foreign policy and command the military.
And although he failed to convince the Court that the capacity to exercise these powers would be seriously affected by publication of the papers, the Court did recognize that at some point the authority to govern that Dean Griswold invoked could limit the right to publish. The Court did not decide the case on the ground that the words "no law" allowed of no exception and meant that the rights of expression were absolute. The Court's majority 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 to go the other way. Threatened publication of something like the D-Day invasion plans could have been enjoined; Justice Brennan mentioned a publication that would risk a nuclear holocaust in peacetime.
Even the First Amendment, then, expressing the value of speech and publication in the terms of a right as paramount as any fundamental right can be, does not quite get to the point of an absolute guarantee. It fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish, the value of security for the nation and the value of the President's authority in matters foreign and military. 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. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary. A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice. Choices like the ones the Justices envisioned in the Papers case make up much of what we call law.
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.
Now let me tell a second story, not one illustrating the tensions within constitutional law, but one showing the subtlety of（引起另一个话题，用于第3段段首） constitutional facts. Again the story is about a famous case, and a good many of us here remember this one, too: Brown v. Board of Education from 1954, in which the Supreme Court unanimously held that racial segregation in public schools imposed by law was unconstitutional, as violating the guarantee of equal protection of the law.
Brown ended the era of separate-but-equal, whose paradigm was the decision in 1896 of the case called Plessy v. Ferguson, where the Supreme Court had held it was no violation of the equal protection guarantee to require black people to ride in a separate railroad car that was physically equal to the car for whites. One argument offered in Plessy was that the separate black car was a badge of inferiority, to which the Court majority responded that if black people viewed it that way; the implication was merely a product of their own minds. Sixty years later, Brown held that a segregated school required for black children was inherently unequal.
For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision. Those who look to that model are unlikely 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 point 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 more 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. That meaning is not captured by descriptions of physically identical schools or physically identical railroad cars. The meaning of facts arises elsewhere and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page. And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: it expressed a judgment of inherent inferiority on the part of the minority race. The judges who understood the meaning that was apparent in 1954 would have violated their oaths to uphold the Constitution if they had not held the segregation mandate unconstitutional.
Did the judges of 1954 cross some line of legitimacy into law making, stating a conclusion that you will not find written in the Constitution? Was it activism to act based on the current meaning of facts that at a purely objective level were about the same as Plessy's facts 60 years before? So much for the assumption that facts just lie there waiting for an objective judge to view them.
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（承接句） 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（递进）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（文章末尾主题句，I要换成everyone） United States.
原文地址：http://www.ruanyifeng.com/blog/2010/06/remarks_of_david_souter_in_harvard_commencement_2010.html
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