Notes From Babel

Justice Breyer on Constitutional Interpretation

with one comment

From today’s Washington Post on Justice Stephen Breyer’s new book, Making Our Democracy Work:

“The court should reject approaches to interpreting the Constitution that consider the document’s scope and application as fixed at the moment of framing,” Breyer writes. “Rather, the court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.”

Judges should go about this, Breyer says, using “traditional legal tools, such as text, history, tradition, precedent, and purposes and related consequences, to help find proper legal answers. But courts should emphasize certain of these tools, particularly purposes and consequences. Doing so will make the law work better for those whom it affects.”

The bolded sentence struck me as odd, so I fired up my trusty desktop thesaurus to check something out.  Synonyms for “unwavering” include, among others, “stiff” and “unbendable.”  Synonyms for “flexible” include, among others, “elastic” and “pliable.”

Perhaps Breyer is shrewder than I gave him credit for.  This will surely pique the interest of many potential book-buyers as to how something “stiff” and “unbendable” can be “flexibly” and “elastically” applied.  (Perhaps soaking it in water 24 hours before application?)  If I didn’t already know this was standard, non-interpretivist liberal hokum, I might have been among them.

h/t Volokh.


Written by Tim Kowal

September 21, 2010 at 8:54 pm

Posted in Uncategorized

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One Response

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  1. He was saying that the constitution is unchanged in the way it was laid out, but the way it should be applied to reality should reflect the changing views of society and the circumstances that those changing views entail.


    December 13, 2012 at 10:29 pm

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