Legal Commentary

Breyer?s Approach to the Constitution

By Jonathan H. Adler

Yesterday?s Washington Post has an interesting profile of Justice Stephen Breyer, keyed to the release of his new book, Making Our Democracy Work.

?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.?

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.?

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.

?I?ve said many times: I can understand why you?d want . . . a simple, clear theory, as if you had a historical computer and could in fact decide on the basis of history the answer to these questions,? Breyer said. ?But history is too uncertain.?

Full post as published by The Volokh Conspiracy on September 20, 2010 (boomark / email).