Justice Breyer Argues for Court Activism and Against Strict Interpretation

Justice Breyer Argues for Activism

The Daily Bell – by Staff Report


Stephen Breyer

U.S. Supreme Court Justice Stephen Breyer’s (left) book, Making Democracy Work, A Judge’s View, is a combination of history and legal philosophy … Breyer has sparred for years with Justice Antonin Scalia on the printed pages of legal opinions. The two have even debated about constitutional interpretation in public. And now Justice Breyer has taken his argument to the printed pages of a book written for popular consumption. In his first interview about the new book, Breyer’s targets are the ideas of originalism and textualism advocated by Scalia — the notion that the framers of the Constitution meant what they said and no more — and that the provisions of the Constitution are limited to what they covered back in 1789. Breyer’s book, Making Our Democracy Work, A Judge’s View, is a combination of history and legal philosophy. It argues that there are no easy, color-by-the-numbers answers to many legal questions and that to suggest there are is an illusion. – PBS

Dominant Social Theme: It’s not a good system but it’s the best we’ve got.

Free-Market Analysis: In his new book, U.S. Supreme Court Justice Stephen Breyer confronts Justice Antonin Scalia regarding the much-debated issue of originalism and textualism. Scalia wants to read the words of the Constitution and conform to them as strictly as possible – perhaps using a historical frame of reference. In Breyer’s book, Making Our Democracy Work, A Judge’s View, he argues for a more nuanced approach that includes research into the founders’ historical intent, values, etc. Scalia’s few seems simpler in this regard: “The Constitution that I interpret and apply is not living, but dead.”