U.S. Supreme Court Justice Stephen 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.
Scalia’s view is much more black and white. “The Constitution that I interpret and apply is not living, but dead,” he famously said.
Scalia contends that the Constitution is not flexible and its meaning cannot change over time. To allow the Constitution’s meaning to morph over time, he contends, just allows judges to say it means whatever they want it to say.