The United States has the oldest surviving codified charter of any sovereign nation. Its endurance is a testament to the wisdom of the Founding Fathers, whose insistence on a written code embodied the principle that our laws should be fixed and uniformly applied, thus providing clarity and stability to our political system. By enshrining an explicit delineation of rights, powers, and responsibilities, our Constitution demarcates tangible constraints on the state and affords the means to gauge compliance with those constraints. Putting limits in writing mitigates the risks of both majoritarian overreach and the arbitrary exercise of judicial authority.
It follows, then, that constitutional provisions should be interpreted according to the original meaning of the words used in the document. This describes a method of interpretation often called “textualism.” Any standard that allows interpretation in a manner that deviates from the text imperils the system. If the written words do not convey a consistent, objective meaning, we will then have to depend on the varying subjective values of the individuals interpreting the document.
Stephen Breyer disagrees with the textualist philosophy, presenting his case in his most recent book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. Breyer began serving as an associate justice on the Supreme Court in 1994 and lasted until 2022, when liberal activists and some Democratic lawmakers encouraged him to retire to permit President Biden to appoint his replacement before the Senate could change hands in the then upcoming midterm elections. In a blow to pragmatism, Ketanji Brown Jackson, Breyer’s successor, apparently felt it prudent to place herself in the textualist camp, declaring in her confirmation hearing that “the Constitution is fixed in its meaning,” and that “the original public meaning…of the words [in the Constitution serve as] a limitation on my authority.”
Breyer rejects adherence to the original generally understood meaning of the Constitution’s text, finding this approach too rigid and formalistic. He favors a “pragmatic” interpretive method, focused on the real-world consequences and policy implications of judicial decisions. Judges should, he says, interpret the Constitution in a way that produces desirable outcomes, balancing several factors, including, in addition to text, purpose, history, tradition, precedent, consequences, values, and what a reasonable legislator likely would have thought.
Breyer’s methodology lacks constraining principles. By permitting flexible consideration of other factors over faithfulness to text, his approach injects subjectivity and discretion into what should ideally be an objective process. First, judges individually determine how much weight to give each interpretive factor on a case-by-case basis. And second, there is no reason to believe that judges possess special competence to discern the “true” purposes behind constitutional provisions or to predict the real-world consequences of their decisions. The resulting unpredictability, as different judges reach different conclusions based on their personal values and views, undermines the rule of law.
Breyer insists that the flexibility pragmatism affords is a virtue that “makes our democracy more workable.” He argues that his interpretive philosophy does not provide an unguided license for judicial policymaking but rather that pragmatic judges are constrained by some specialized sixth sense they gain through time on the bench. He writes:
Which tools the judge will use, and how much weight she will put upon related results, depends not so much upon the judge as upon the case. It is judicial instinct, created and honed by experience, that will typically tell the judge what considerations to use and emphasize in a particular case.
This is magical thinking. Any elementary understanding of human nature suggests it is much more likely that judges, consciously or subconsciously, will use the set of tools most supportive of the outcome they desire in each particular case. Even in the implausible event that two judges choose and weigh all factors identically, they may still differ wildly in their views of purposes and real-world consequences, leading to diametrically opposed conclusions. And if the rule of law means anything, it is that the outcome of your case should not depend on the personal views of the judge you draw.
Breyer contends that, regardless of any theoretical appeal, constitutional textualism does not work in practice. He provides several reasons he thinks this to be so. He writes that requiring judges “to place determinative weight on the way in which eighteenth century speakers used particular words is to ask judges to perform a task they are not qualified to perform, and quite likely will not perform well.”
He significantly overstates the difficulties of the job. Determining the original public meaning of constitutional text from the 18th century may be challenging, but of course some people spend their days studying 18th-century texts from Locke and Adam Smith to Henry Fielding and Denies Diderot, finding them both readable and comprehensible in their relation to our day as well as evocative of the days in which they were written. To be even more precise in their understanding, judges routinely turn to dictionaries, historical records, and other evidence to determine how language was used. This task is both more objective and easier than asking judges, as Breyer would, to speculate about the purposes, values, and intentions of the Framers. Breyer concedes as much, admitting his approach is “often more complex to apply than textualism.”
Breyer notes that the Constitution “contains many highly general words representing general values, subject to a degree of change over time as they apply to factual circumstances that themselves change.” He thinks even experts would find it too difficult to determine the objective public meaning of these broadly worded provisions. But they are broadly worded for a reason. Even the smartest people alive in the late 18th century could not have foreseen the technological and social changes that have taken place over the past 240 years. The Framers knew this and employed general language to allow for future application to new and unanticipated circumstances.
Breyer asserts that, even with this built-in flexibility, the textualist approach is not sufficiently adaptable for a Constitution designed to last for centuries. According to Breyer, textualism does not permit judges
to consider the practical consequences of their interpretations or the purposes of, and the values protected by, the constitutional provisions at issue in a case. That perspective threatens the workability of our constitutional system and impinges on the ability of democratic legislatures to create modern solutions to modern problems.
To illustrate his point, Breyer points to his dissent in New York State Rifle & Pistol Association v. Bruen, a landmark ruling on the Second Amendment right to bear arms that limited New York’s ability to restrict applications for concealed-carry licenses. For the sake of argument, Breyer concedes that the Second Amendment contains a personal right to bear arms. To the majority, this was dispositive. But to Breyer, it was not. Textualism led to an unworkable result because it prevented the Court from considering “the interest of federal, state and local governments in regulating guns to protect the health and welfare of all of their citizens.” Breyer would have the Court consider these interests, override the constitutionally protected right, and validate the legislative action. In other words, he doesn’t like guns or the effect they are having on our society and wanted to use his power to limit access to them—even if the use of that power for this specific purpose is explicitly enjoined in the Constitution itself.
_____________
Breyer’s pragmatic approach is a permission structure that allows unelected judges with lifetime tenure to eliminate rights protected by the Constitution’s text and create new fundamental rights nowhere to be found. Eliminating or creating these various rights may or may not be wise, but doing so through judicial fiat can hardly be considered a valid method of constitutional interpretation or a healthy way to run a republic.
Breyer gives the game away by admitting that pragmatism and other “purpose-based approaches are often closely entwined with the ‘common law’ mode of judging” while textualist judges avoid common-law methods. Common law means judge-made law—judges reason from prior cases to update or replace previous judge-made laws based on their personal views of policy considerations and societal values.
Breyer believes that judges should apply common-law techniques to interpret the Constitution. They should be free to deviate from the original plain meaning of constitutional provisions based on their understanding of the unexpressed values underlying those provisions and changing circumstances. But this is not the role of the judiciary in our system. The Constitution is not a Rorschach test. A judge’s job is to interpret the Constitution as written, not to change its meaning based on what he thinks he sees. The Founding Fathers knew that separating the judicial and legislative functions was essential for preserving the rule of law, preventing tyranny, and promoting good governance.
Progressives have long favored Breyer’s pragmatic approach to constitutional interpretation because it has allowed them to expand the power of the Federal government and enabled the Court to effect policies blocked by the traditional democratic process. For the bulk of the past nine decades, a majority of the Court has too often been willing to deviate from the original meaning of constitutional text to decide cases in a manner that furthers progressive goals. Breyer concedes, “Courts are not well suited to resolve political questions.” Yet many of the Court’s decisions have stripped legislatures of their ability to forge political compromises on the nation’s most contentious issues. As a result, despite Breyer’s assertion to the contrary, the Court’s “pragmatic” decisions have frequently exacerbated and sustained social tensions rather than eased them.
As the ideological composition of the Court has shifted and its rulings have ceased in the main to advance leftist objectives, progressives have begun to claim that the Court has lost its legitimacy, highlighting what should be an obvious truth: Pragmatism is desirable only when judicial perspectives coincide with one’s own. This underscores the fundamental flaw in Breyer’s chosen method: If society cherishes predictability, stability, and the rule of law, the resolution of constitutional cases should not hinge on an interpretive philosophy, like pragmatism, that is contingent on the Court’s composition.
Textualism, in contrast, strives to be value-neutral. Of course, no process involving human judgment can be entirely objective, and textualist judges will sometimes err in discerning the original public meaning of certain words or phrases. However, the fact remains that textualism is a more predictable, constraining, and democratically legitimate method of interpretation than Breyer’s pragmatic philosophy, which suggests that once you’ve climbed the greasy pole to a lifetime appointment, you have a free pass to remodel the American system wholesale.
Photo: AP Photo/Andrew Harnik
We want to hear your thoughts about this article. Click here to send a letter to the editor.
