Tuesday, September 21, 2010


...were emplaced by the framers for very, very good reasons. I have no objection to updating machanisms that apply the constitution to "ever-changing circumstances", but to say that "history is uncertain" vis a vis the uncertainty of subjective argument is disengenous. This is about power, not the ability to apply some pricipal that is the most asymptotic to some definition of the constitution's "purpose".

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."

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."

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