(Official Washington Examiner editorial, March 29)  Don’t fall for former Supreme Court Justice Stephen Breyer’s newly published call for “pragmatism” rather than “originalism” or “textualism” as the best interpretive method. What Breyer’s suggestion amounts to is the anti-democratic idea that judges should be free to twist what the law says to suit their own prejudices — that is, they should be above the law rather than servants of it.

Breyer has been on a spirited publicity tour for his new book Reading the Constitution: Why I Chose Pragmatism, Not Textualism. Alas, his arguments amount to the same old mush.

The learned justice says his method of judging is needed as a model for successors because “the world does change,” so if the court doesn’t interpret the Constitution as evolvable, too, “we will have a Constitution that no one wants.” Therefore, he says repeatedly, his method “involves purposes, consequences, values, and sometimes much more.”

This sounds high-minded and reasonable, but it is bunk. Even worse, it is a power grab subject to no limiting principle, especially when he goes into an open-ended “much more” phase. Breyer treats as paramount the jurist’s subjective assessment of “values and sometimes much more,” as if he possesses Olympian wisdom about such matter above that of mere mortals. This would turn representative democracy into an elitist oligarchy, a rule by nine supposedly wise men and women, against America’s constitutional design that deliberately separates, disperses, and blends power in multitudinous ways intended to safeguard liberty.

In a republic, applying “values” and trying to create the right “consequences” is the job not of judges but of the people’s elected representatives, or of the people themselves. The Constitution, as fundamental law enacted by the people, is supreme. Statutes written via representative procedures are next. The reason judges, ultimately Supreme Court justices, are final arbiters of what the law means is not because they possess superior moral or value-based perspicacity, but because they are supposed to be the most learned in parsing the words of laws to ensure they are applied faithfully. Jurists are supposed to be guided and humbly governed by the words of the law, not be willful masters over them…. [The full column is at this link.]



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