In New Book, Justice Breyer Takes it Straight to Justice Scalia
By Ashby Jones
Judging from this NPR story, the book is less an explanation of Breyer’s thought about judging than it is a rather full-throated attack on “originalism,” the constitutional theory most famously espoused by Justice Antonin Scalia.
As NPR reporter Nina Totenberg writes (click through to hear Totenberg’s interview with Breyer), Breyer has sparred for years with Scalia through a host of mediums, namely legal opinions and in public debate. But now Breyer has upped the ante a bit, moving his “argument to the printed pages of a book written for popular consumption.”
Breyer’s targets, writes Totenberg, “is largely 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.”
“People think . . . the only way to protect against subjective views of judges is to have something called originalism, which is as if you could reach decisions by means of an historical computer,” Breyer told Totenberg. “I don’t think any of those things are true.”
In support of his argument that the founders did want a “living Constitution,” he points to the countless Supreme Court cases that debate open matters like the 14th Amendment, First Amendment and Eighth Amendment’s ban on “cruel and unusual punishment.”
“Flogging as a punishment might have been fine in the 18th century. That doesn’t mean that it would be OK, and not cruel and unusual, today,” he says.
And how does Justice Scalia respond? Well, Totenberg doesn’t quote him in her story. But rest assured, we haven’t heard the last from the outspoken Scalia.
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living constitution? or originalism,
Do not judge judges. they are split over the role of judges in the context of separation of power rather than the ways of interpreting law or much less value
