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.