Summary of Reading the Constitution by Stephen Breyer: Why I Chose Pragmatism, Not Textualism E-Book

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• Herausgeber: BookRix
• Kategorie: Bildung
• Sprache: Englisch
• Veröffentlichungsjahr: 2024

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Summary of Reading the Constitution by Stephen Breyer: Why I Chose Pragmatism, Not Textualism

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Stephen Breyer, a retired Supreme Court Justice, presents a compelling analysis that challenges the textualist philosophy of the current Supreme Court's supermajority and advocates for a better interpretation of the Constitution. Breyer argues that understanding the purposes of statutes and the consequences of a case is crucial for interpreting law. He examines significant cases in the nation's history, such as the Dobbs and Bruen decisions, which he believes were wrongly decided and have led to harmful results.

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Summary of

Reading the Constitution

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Summary of Stephen Breyer’s book

Why I Chose Pragmatism, Not Textualism

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Summary of Reading the Constitution by Stephen Breyer:Why I Chose Pragmatism, Not Textualism

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This is an unofficial summary & analysis of Stephen Breyer’s “Reading the Constitution: Why I Chose Pragmatism, Not Textualism” designed to enrich your reading experience.

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PREFACE

For 41 years, the author has served as a federal court of appeals judge and a Justice of the United States Supreme Court. Their job involves interpreting statutes and the Constitution, reviewing the decisions of trial courts and state supreme courts. Appellate judges are concerned with ensuring that trial courts correctly interpret and apply the law to the facts of cases in front of them.

The author uses an example from a French newspaper to illustrate the interpretive role of an appellate judge. They often have to answer questions that take the same general form as the snail example, such as whether the words "endangered species" in a law apply to species of birds not known when Congress enacted the law or whether the Second Amendment's phrase "keep and bear arms" protects the right of individual citizens to keep a firearm in the home.

In recent years, scholars and judges have emphasized the role of text in answering these questions. However, the author does not rely solely on the text, but rather considers the statute's purposes and the consequences to which a particular interpretation will likely lead. They may examine the legislative history of a statute to answer these questions and approach broad statutory or constitutional phrases in light of the values that underlie them, including notions of due process of law.

The author's purpose-oriented approach is not merely about choosing the best outcome in any given case, but rather to arrive at an interpretation that is more faithful to the desire of the Constitution's Framers to establish a workable framework for long-lasting government.

The author's views on interpreting law are influenced by their family background, including their father who served as the legal advisor to the San Francisco Board of Education and their mother who participated in civic associations. These experiences have led to a positive association between the author and their brother, who is a federal trial court judge in San Francisco. The author's legal career reinforced these views, as they worked as a law clerk for Supreme Court Justice Arthur Goldberg, Archibald Cox, and Senator Ted Kennedy. These jobs helped the author associate "law" with honesty and working together towards practical and beneficial goals.

The author's views about interpreting law also reflect those of law school professors like Henry Hart, Albert Sacks, and Lon Fuller. These professors viewed interpretation as a search for an outcome that was faithful to the objectives of the legislators who enacted it. Their approaches, in turn, reflect Chief Justice John Marshall's McCulloch v. Maryland case, which emphasized the Constitution's purpose of creating a workable system of government.

Twentieth-century judges, such as Justices Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, and Felix Frankfurter, also used these approaches when interpreting statutory phrases. They aimed to find a law's general purpose, which was more important than any rule laid down by grammar or formal logic.

The author discusses the growing popularity of a textual or originalist approach to interpreting the law, which may limit the scope of a proper interpretation. This approach, sometimes called "textualism," places more interpretive weight on the text or other linguistic considerations than the author believes is appropriate. This can lead to the interpretation of the Constitution by its Founders or contemporaries, putting determinative weight on the meaning given by the Constitution. The author warns that this trend may make the law more difficult to achieve its basic objectives, such as writing legal phrases with precision and treating them as statements describing the world rather than technical legal functions. It may also make it more difficult for legislators to perform constitutionally delegated legislative functions and increase the difficulty for the public to hold legislators democratically responsible. The author also believes that textualism or originalism will not achieve their objectives of making law more definite and simpler to understand, while avoiding the temptation to substitute the judge's own ideas for what the law in fact demands. The author will explain the virtues of a more traditional method of interpretation and the pitfalls of a more strictly textualist or originalist method.

As a working judge, the interpretive approach of a judge is influenced by the fact that they must make decisions quickly and within a limited time. They must also consider the interests of those who will be affected by the decision, as they are more interested in what the court says than in individual court members' opinions. The Supreme Court is a special legal institution that must consider how Americans will understand and respond to the Court's decisions. In a recent case, the Court had to decide whether a school could suspend an angry cheerleader from a sports team because she had sent messages from a coee shop to school classmates with vulgar expressions. The Court held that the First Amendment protected even the student's vulgar speech uttered outside class hours. The Court used metaphors and general language to convey a message about the school's duties as an institution in a democratic society. The nature of the Court's "institutional" role and how individual opinions should reflect that role vary from time to time, from issue to issue, and from judge to judge. Three more general descriptions of law and judging have influenced the way the author approaches interpretive questions.

Montaigne argued that the legal system must adapt to changing human experiences and circumstances. Judges should avoid creating too many detailed rules that are broad in application, as they can lead the law away from its basic objective. Experience, not a treatise, is more likely to help determine whether a decision should be written in a broad or narrow way.

A quality called "judicial instinct" is also important for judges, as it encompasses qualities of mind, character, and approach. A sound judge has qualities such as a sense of proportion, understanding of fit, and creativity. These qualities have long been valued in society, and judges should strive to be sound in their decisions.

Judges should employ legal approaches that will help them along the way, but there is no single approach that sets forth an all-purpose solution. The purpose of interpretation is to ascertain meaning, and every consideration brought to bear for the solution of that problem must be devoted to that end alone. Traditional approaches, which fall within a tradition that the Constitution's Framers saw as highly practical, will help interpret statutes and constitutional phrases.

The tradition sees legal interpretation as an activity that is pragmatic, undogmatic, and adaptive, inherited from the past and open to changes. It communicates its vision through detailed study of cases, institutions, history, and the human needs that underlie them. This practice requires learning, sensitivity, and dedication.

The opinions described in this book will help communicate this vision of the law through thought and analysis, aesthetic coherence, and reflecting an awareness of the variety of human needs and relationships that have called forth our American institutions.

The author discusses the complex nature of interpreting legal phrases, particularly statutes and the Constitution. They argue that textualism and originalism, which seem simpler and promise a single "right" interpretive answer, are often more complex than they seem. The author aims to show that these approaches are not always realized and that the promises of textualism and originalism may not be realized.

The book is organized in five parts, with Part I discussing textualism and its cousin, originalism, and the reasons why they are not very helpful. Part II provides examples of cases requiring judicial interpretation of statutes, emphasizing the importance of logic and thought. Part III discusses cases requiring judges to interpret the Constitution, emphasizing purposes and values. Part IV highlights the importance of recalling the Founders' intention for the Constitution to work well for centuries, as demonstrated by Chief Justice John Marshall in McCulloch v. Maryland.

Part V speculates about what will happen next, whether textual methods become too deeply embedded in the judicial enterprise for traditional interpretive methods to win the day. The author suggests that other nonexclusive tools of interpretation may help convince some that they point the way to a better interpretive path.

In conclusion, the author argues that relying on textualism and originalism may not achieve the advantages they hope for and may lead to a less workable legal system. By understanding and evaluating traditional approaches to interpretation, the next generation of law students can contribute to the effort to slow the tidal wave of interpretation.

PART ONE

PURPOSE VS. TEXTUALISM

Judges traditionally use various interpretive tools to determine the proper interpretation of statutes and the Constitution, including text, history, precedent, tradition, purposes, values, and consequences. There is no specific rank order among these tools, and which one proves more helpful depends on the particular case. Judges have long differed in their importance of certain tools compared to others, with some placing greater weight on text and related linguistic features, while others place greater weight on a statutory or constitutional phrase's purposes. Recently, the differences between "textualist" and "purpose-oriented" judges have become more pronounced. Many judges, legal scholars, and practicing lawyers claim to be textualists, focusing primarily on a phrase's text to find its proper interpretation or application. However, the textualist approach, particularly in its more text-exclusive versions, is an undesirable way to interpret legal text.

Purpose-Based Approaches

Purpose-based approaches to judicial interpretation focus on the purpose of laws and their intended purposes. These approaches are often closely linked to the common law mode of judging, which proceeds case by case, resolving new questions based on the particular facts of new cases. They are rooted in judicial pragmatism, which accounts for how a particular legal decision will affect other legal rules and principles, and often consult a hypothetical "reasonable legislator" to determine how a statute serves broader democratic ends.

Common law methods, which focus on the facts of a particular case, are often used to guide statutory interpretation. However, interpreting a statute can lead to narrow decisions, as the breadth of the holding is a matter for judicial decision. This allows judges to tailor their holding to the statute's purpose while leaving the full scope of the language to be fleshed out or decided in future cases. Common law decisions often exhibit similar, incremental characteristics, allowing judges to tailor their interpretation to the statute's purpose while leaving the full scope of the language to be fleshed out or decided in future cases.

In the 2020 case of County of Maui v. Hawaii Wildlife Fund, the Supreme Court debated the extent to which the Court should have left aspects of the problem to be decided in future cases. The Clean Water Act defines a "pollutant" as any substance that can be discharged from a point source into navigable waters. The court held that a sewage treatment plant in Hawaii may need a federal permit if the sewage mixture travels hundreds of miles before reaching the Pacific Ocean.

The Court reached a compromise that drew heavily from the common law method. Instead of adopting either extreme, the Court decided that a permit was needed if the addition of pollutants through groundwater "is the functional equivalent of a direct discharge from the point source into navigable waters." The Court added considerations that would help lower courts determine when the "functional equivalent" standard applied, such as the length of underground travel, its duration, and its having mixed with other nonpolluted water.