In book, more of Breyer's dissents on originalism

Stephen G. Breyer, left, and Antonin Scalia are frequently at odds, especially over the concept of originalism, which Scalia champions.
Stephen G. Breyer, left, and Antonin Scalia are frequently at odds, especially over the concept of originalism, which Scalia champions. (Chip Somodevilla)
Robert Barnes
Sunday, September 19, 2010

When President Obama faced openings on the Supreme Court in his first two years in office, a frequent request from liberals was for someone to stand up to Justice Antonin Scalia. Give us someone who'll take him on, they said, and tell him why he's wrong.

In fact, though, Justice Stephen G. Breyer, appointed to the court by President Bill Clinton in 1994, has been doing just that for years.

Scalia and Breyer are frequent debating partners, and Breyer has written not one but two books critiquing originalism, the method of constitutional interpretation most associated with Scalia. It says the best way to interpret the Constitution is by looking at the meaning of the words at the time they were written.

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."

In the book, he points to District of Columbia v. Heller, the case that established for the first time that the Second Amendment protects an individual right to gun ownership. Scalia, writing for the five-member majority, and Justice John Paul Stevens, writing for the four dissenters, including Breyer, both looked extensively at the amendment's historical roots. They came up with completely different interpretations.

But Breyer went further, saying that even if such a right existed, the District had authority to forbid handgun ownership because it had a compelling interest in saving lives. Such a proportionality approach is criticized as "judge-empowering," Breyer acknowledges. "But what is the alternative? Today's court should not base an answer to a question about an issue such as gun control on the facts and circumstances of eighteenth-century society."

Breyer's discussion of Heller is only one of a number of recent cases he mentions in the book. But those looking for an insider's account of the deliberations that went into the decisions will be disappointed. He doesn't mention any current colleagues by name, and his descriptions of the holdings in the cases read much like newspaper or law-review descriptions.

"I tried to be as objective as I could be," he said.

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