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August 23, 2005
Justice Breyer takes on the Originalists
This Wall Street Journal ($) book review previews U.S. Supreme Court Justice Stephen Breyer's soon-to-be-published book, Active Liberty: Interpreting Our Democratic Constitution (Knopf Sept. 2005) in which Justice Breyer offers a rejoinder to his longtime intellectual opponent on the Supreme Court, Justice Antonin Scalia, who advocates "originalism" - i.e., a more literal interpretation of the Constitution's meaning at the time of its writing. Justice Scalia's views were set forth in his book, A Matter of Interpretation: Federal Courts and the Law (Princeton Univ. Press 1997).
In the book, Justice Breyer advances the longstanding criticism that originalism is simply a self-righteous political cover for the fact that all Supreme Court justices, regardless of their judicial philosophy, rely on common elements such as "language, history, tradition, precedent, purpose and consequence" when interpreting laws. It's the way in which they afford different weight to each factor, contends Justice Breyer, that often has a monumental impact on the American republic.
Justice Breyer's view does have merit, as the entire originalist rationale has a questionable historical basis (the Founding Fathers had widely divergent views on the Constitution and the role of the judiciary) and certainly does not always lead to a coherent uniform approach to resolving cases. However, even though some of the originalist-based decisions have had the consequence of enlarging the governmental bureaucracies and divesting local communities of control, my sense is that Justice Breyer's approach is still more likely to result in debacles such as this.
Update: Jim Lindgren over at the Volokh Conspiracy speculates as to the source of Justice Breyer's theory.
Posted by Tom at August 23, 2005 04:54 AM
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Comments
Of course, virtually the entire contemporary debate over constitutional interpretation (with the notable exception of the Claremonsters, and to some extent Justice Thomas, who may well be the "son" of Justice Sutherland whether he realizes it or not) takes place within the post-Progressive redefinition of American constitutionalism, which effectively delinked the constitution from the Declaration (and the political philosophy it espoused -- broadly speaking).
In that sense, several useful preliminary reads for the person wanting fully to appreciate the larger debate might include Howard Gillman's The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence, Hadley Arkes's The Return of George Sutherland, Morton Horwitz's
The Transformation of American Law (Vol 2), and Bruce Ackerman's We The People volumes.
I disagree with much that Ackerman writes, but his notion of constitutional moments is useful to those who want to reflect seriously on constitutional change and who want to think about the matter in a way that transcends simplistic left-right battles over "originalism" and "activism".
Posted by: kevin whited at August 23, 2005 09:25 AM
Tom,
J. Breyer's particular view of the correct constitutional hermeneutic may be off, but that is a separate inquiry from whether Scalia -- or any other originalist's, for that matter -- is correct or even coherent.
Larry Tribe once said that his inability to propose a "how-to" method for interpreting the Constitution does not preclude him from critiquing the flaws in methods that are posited by others.
I think Breyer's criticisms are right on.
Posted by: TP at August 23, 2005 10:37 PM
Milton, I agree with you that Breyer's criticism of the Originalist approach is valid. I'm just skeptical that the "approach" that he suggests that he follows himself is any better. Isn't much of this argument simply political posturing?
Posted by: Tom K. at August 24, 2005 04:03 PM
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