Justice Breyer Versus Textualism and Originalism

Retired Supreme Court Justice Stephen Breyer is making the media rounds^[1]See here, here, and here. to discuss his new book entitled “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.” As the title suggests, he rejects the Supreme Court’s use of “textualism” as a method of interpreting the law. He also criticizes its use of “originalism” to interpret the Constitution.

Notably, Justice Breyer wants no part of the vitriolic attacks on the Court that have become commonplace on the left—denying its “legitimacy” and dismissing the Justices as ethically challenged “political hacks.” He does not accuse them of acting in bad faith or from partisan political motives. Rather, his criticisms center on differences in jurisprudential philosophy.

The civil tone and substantive nature of Justice Breyer’s critiques are a welcome relief from the unhinged rants aimed at the Court these days. But is he right?

Certainly, the Court’s use of textualism and originalism is subject to legitimate criticism. It has rightly been accused of inconsistency and selectivity in invoking them.^[2]For example, the Court’s recent unanimous decision in Trump v. Anderson contradicts both the text and original meaning of section 3 of the Fourteenth Amendment. Conservative judges differ among themselves on what these concepts entail^[3] See, e.g., here. and how they apply in specific cases.^[4]In Bostock v. Clayton County, conservative Justices disagreed fiercely with each other over the right textualist interpretation of a statute. And as Justice Breyer notes, the Court’s use of history to discern the original meaning of constitutional provisions can be especially dicey.^[5]The Court’s decision in New York State Rifle & Pistol Assn v. Bruen is a much-criticized example.

Finally, these interpretive methodologies are hardly silver bullets. Few cases reaching the Supreme Court involve issues of statutory or constitutional interpretation that can easily be decided based on unambiguous text or readily apparent original meaning. (Of course, this limitation applies to any interpretive method; cases with obvious answers rarely come before the Court.)

Nevertheless, both textualism and originalism are conceptually sound, indeed compelling. Applied consistently and where feasible, both can instill much needed discipline into the business of judging.

Textualism focuses on the actual words of written law (statutory or constitutional). It does so for one obvious and fundamental reason: The language of a statute or constitutional provision embodies what the law is; as such, it provides the best evidence–indeed the only authoritative evidence—of what the law means. It follows that any credible interpretation of the law’s meaning must be anchored in its text.

Contrary to Justice Breyer’s caricature, textualism is far from a simplistic, wooden exercise that fetishizes grammar and punctuation. Interpreting statutory text is a complex, sophisticated task that involves a host of well-established and mainly logical, common-sense principles and presumptions (so-called “canons”).^[6]See here for a description of some of prominent canons. And while textualism centers on the language of the law, it is not confined to the four corners of the document. Other sources may be considered–e.g., context, relationship to other laws, even legislative history–if they are relevant and useful to discerning the meaning of the language.^[7]While some textualists (including former Justice Scalia) distain legislative history, most see a role for it in helping to resolve ambiguities in the text. Non-textualists have been known to do the … Continue reading

Originalism as a means of interpreting the Constitution is closely related to textualism. It holds that the Constitution should be construed in accordance with the meaning of its language as understood at the time it was adopted. The premise is that the meaning of the Constitution cannot change on its own without a corresponding change in its text via formal amendment.^[8]See here for background.

Justice Breyer favors an alternative jurisprudential approach that views the Constitution as a “living” document whose meaning can “evolve” without benefit of formal amendment to better reflect contemporary mores and values. After all, he observes, “half the country wasn’t represented in the political process that led to the document.”

It’s true that the United States and its body politic look much different now from when the Constitution was adopted. Some constitutional provisions may seem anachronistic and undemocratic—e.g., the electoral college, the composition of the Senate. However, they obviously can’t unilaterally evolve to mean something other than what they say.

Even as to less specific provisions, the notion that the Constitution’s meaning can evolve to better reflect contemporary values and mores doesn’t guarantee change for the better; change can also be regressive. Many of today’s political influencers, particularly in academia and elsewhere on the left, increasingly disfavor or at best downplay traditional concepts of freedom of speech, due process, and equal protection. Living constitutionalist judges could conceivably retrench these fundamental rights on the basis that society values them less now than it once did.

In the final analysis, originalism versus living constitutionalism and textualism versus other means of statutory interpretation^[9] See here. may come down to how one sees the role of judges.

Justice Breyer views judges as problem-solvers who should interpret a law (statutory or constitutional) by “consider[ing] a problem from every angle,” as he put it in one interview. This includes assessing the law’s purposes and consequences, and whether it makes sense in relation to contemporary circumstances and values. By contrast, textualists and originalists see the judicial role as more modest–seeking to ascertain and defer to the choices the elected representatives of the people made as set forth in the enacted law. They favor relying on democratic processes to decide by formal amendment when and how the law needs to change.

With due respect to Justice Breyer, I’d submit that textualism and originalism, with all their limitations, are preferable to the alternatives.