11 September 2011


From Stephen Breyer's 'Making Our Democracy Work: The Yale Lectures' [PDF] via 120 Yale Law Journal (2011) 1999-2026 -
What, then, about "originalism"? Originalists believe they can find the answers to most constitutional questions simply by looking to historical circumstances — at the time of the Framing — and applying the Constitution now as the Framers would have thought it applied in detail then. They believe this approach provides an objective way to reach legal decisions, thereby holding the judge’s subjective impulses in check. For similar reasons, originalists often try to find the answers to difficult statutory questions in then statute’s literal language.

I am not an originalist, and I do not believe that method of interpretation can live up to its billing. For one thing, legal questions that reach the Supreme Court are difficult, uncertain, and close ones. Typically the relevant history is itself uncertain and a matter of considerable debate. In one typical case, for example, the historical approach would have had us decide how the Ex Post Facto Clause applied to a modern circumstance by examining a late eighteenth-century American judge’s views about what a mid-eighteenth-century English treatise writer (Blackstone) thought about a seventeenth-century parliamentary trial of an English bishop. The truth of the matter is, in my opinion, that none of us could be certain how to answer this historical question. If history is determinative, the Court should be made up of nine historians, not nine judges — though I suspect that even nine historians would have disagreed in the Ex Post Facto Clause case.

For another thing, the Framers intended many constitutional clauses, for example, the Commerce Clause, to apply in light of changing circumstances. The Framers would have wanted and expected the Court to apply the Clause to later commercial developments, such as automobiles and airplanes. To take a more controversial example, consider the Fourteenth Amendment’s insistence upon "equal protection of the laws." That phrase, applied consistently with its basic purpose, forbids racially segregated schools. Nor does it matter that, at the time it was enacted, the District of Columbia practiced that pernicious segregation. It does not matter because, by the mid-twentieth century, racial segregation had proved its incompatibility with equal treatment. And the Amendment’s more general, basic purpose — equal treatment — trumped its authors’ much earlier, empirically incorrect beliefs that segregation and that basic equal treatment objective could peacefully coexist.

Finally, even if we could know all relevant history in detail, why should the public continue to accept a Constitution that freezes eighteenth-century detail and then imports it wholesale into modern society? Severe flogging was used as a criminal punishment until well into the nineteenth century. Yet would we not now hold it a “cruel and unusual punishment” forbidden by the Eighth Amendment — irrespective of what the Framers thought about flogging?

Arguments along these lines, even when elaborated and reinforced by other arguments (as in my book), will not convince the originalists. And one reason that is so is well expressed in a joke I have heard Justice Scalia tell:
A hunter, camping, sees a companion putting on running shoes.

"Why are you doing that?" he asks.

"Because a bear is running toward us pretty fast."

"But you can’t outrun a bear."

"Yes, but I can outrun you."
The point of the joke is that “politics” cannot and should not provide the answers to difficult constitutional questions; nor can an appeal to the judge’s subjective notion of “the good.” So it is “originalism” or nothing. What is the alternative to originalism?

That is the question that Parts II and III of my book try to answer. They make clear that there is an alternative, an alternative with well-established, traditionally American roots. Gordon Wood, the eminent historian, writes that late eighteenth-century judges took an “unusually instrumental attitude toward law," offering "prudent and pragmatic regulations" and justifying them by what Connecticut jurist Jesse Root called the "reasonableness and utility of their operation." Judges whom we all admire, such as Hand, Holmes, Brandeis, and Cardozo, all follow that tradition.

Let me be more specific. For one thing, the alternative approach is based upon common values. Those values are themselves found in the Constitution. Embodied in the document’s provisions, they do not change. But circumstances do change. And the constitutional job of the Supreme Court judge is to apply those permanent values to ever-changing circumstances. The Framers intended to protect free expression; but they knew nothing of the Internet. The contemporary judge must decide how well-established First Amendment protections apply to changing, modern Internet circumstances. For another thing, the alternative places great weight upon purposes — of those who wrote a statute or the Constitution. It looks for Congress’s intent where statutes are at issue and for basic underlying values where the interpretation concerns the Constitution.

Further, the alternative looks to subsidiary approaches or attitudes that can help the Court work cooperatively and productively with other governmental institutions. By applying several different judicial attitudes in different areas of the law, the Court can cooperate effectively with other parts of government, helping both government and the law itself work better for ordinary Americans — not in every case, but by and large, in general, over time.

Elsewhere (i.e., in my book) I describe the set of subsidiary attitudes that I believe will help the courts work more cooperatively with Congress (in respect to statutory interpretation); with the executive branch (in respect to the work of administrative agencies); with the states (in respect to principles of federalism); with lower courts (in respect, e.g., to case management); with prior courts (in respect to stare decisis); and with the President (in respect, e.g., to matters of national security).

Finally, the alternative is pragmatic. It recognizes that many difficult cases involve a weighing, not of good against evil, but of one good against another. How, for example, are we to resolve cases where privacy interests conflict with those of free expression? How do we resolve cases where the protection of traditional civil liberties and serious national security needs find themselves in conflict?

A pragmatic approach does not leave the judge free to do whatever he or she thinks is good. The judge must write an opinion. And a good opinion contains the true reasons that led to the judge’s decision. The decision must be reasoned. It must be principled. It must be transparent. It must be informative. And it must be consistent with the vast set of legal rules and practices that make up the judicial craft. That is what Judge Learned Hand meant when, speaking of the constraints under which he decided a case, he pointed to the shelves behind his desk and said, "those books."