Dellinger:

A true originalist, Souter refuses to limit individual rights to the time-bound set of liberties that the Framers of the 14th Amendment would have include had they chosen to adopt a specific list. The short answer is that the Framers did not so choose. They deliberately wrote with a broad brush and left particular applications to the future. In carrying out that mandate, Souter writes, the court must look to "widely shared understandings within the national society" that can change "as interests claimed under the rubric of liberty evolve into recognition."

Having defended the concept of evolving liberty, Souter then turns to the important question of when it would be "premature for the Judicial Branch to decide whether … a general right should be recognized."

"The beginning of wisdom," he writes, "is to go slow." Before declaring "unsympathetic state or national laws arbitrary to the point of being unconstitutional," he writes, a wise court will "recognize how much time society needs in order to work through a given issue."

His opinion then takes what seems to be an extraordinarily personal turn. He may be speaking of himself (or his rural neighbors) when his says that "[w]e can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally." Sometimes, he says, "an attachment to the familiar and the limits of experience" limit "an individual's capacity to see the potential legitimacy of a moral position."

So, too, it is with the broader society, which "needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim." Souter's final message to his conservative colleagues is that conceptions of liberty evolve. And his last caution to those litigators pushing the frontiers of liberty is that nations, like individuals, need time to assimilate new thinking.