From a WaPo feature
Breyer's new book, "Making Our Democracy Work," underlines their disagreement in a chapter called "The Basic Approach."
"The court should reject approaches to interpreting the Constitution that consider the document's scope and application as fixed at the moment of framing," Breyer writes. "Rather, the court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances."
I have no idea what Justice Breyer considers to be the Constitution's "unwavering values" are, but they don't include political speech (Citizens United
) or armed self-defense (McDonald
), just to name a few recent examples. On the bright side, he realizes his own shortcomings.
Breyer, 72, said in an interview that he understands how that opens him to criticism of subjectivity, and that his approach lacks the simple message of originalism.
Breyer sells originalism short when he only cites its "simple message," but that is a post for another day. Besides, there are whole books dedicated to defending originalism
. So how does Justice Breyer suggest going about interpteting the Constitution's "unwavering values"?
Judges should go about this, Breyer says, using "traditional legal tools, such as text, history, tradition, precedent, and purposes and related consequences, to help find proper legal answers. But courts should emphasize certain of these tools, particularly purposes and consequences. Doing so will make the law work better for those whom it affects."
Purposes and consequences? What does that even mean? How'd that work out for the ADA
? How about the consequences of upholding much of the New Deal
? That doesn't even get into looking at the stupidity of trying to figure out the law's purpose, which the Court, in the case of economic liberty, has said doesn't even matter. Breyer is right when he says that, "he understands how that opens him to criticism of subjectivity." The problem is that he answers that criticism by listing a bunch of subjective criteria to guide his decisions. I hope he continues his book tour. The public is getting a good look at the left's most prominent jurist. I have a feeling they won't like what they hear.