How Should Judges Judge?

Active Liberty
Interpreting Our Democratic Constitution
Stephen Breyer
Alfred A. Knopf, $21, 176 pp.

Supreme Court Justice Stephen Breyer’s elegant little book has gotten a lot of press. The reason for the buzz is that the view of constitutional interpretation that he puts forth directly challenges the view of the Court’s most outspoken conservative, Justice Antonin Scalia. Scalia has long argued that his view of how the Constitution should be interpreted, which he calls “originalism,” is most consistent with a democratic system of government and best protects against what he takes to be “the main danger in judicial interpretation of the Constitution,” namely, that “judges will mistake their own predilections for the law” (see Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57/3, 1989).

“Originalists” hold that the meaning of the Constitution should be understood as fixed. So, for example, the amendments to the Constitution mean what they meant when they were ratified, and no more. The job of a judge is to resolve questions of law by determining and applying the original meaning of the constitutional text in question. Breyer presents a liberal reply to Scalia and others.

There is much that is compelling in Breyer’s argument, and it is to be hoped that his book will be widely read. In the end, though, it is difficult to escape the impression that he has made matters too easy for himself. Breyer mostly ignores here the “culture war” controversies...

To read the rest of this article please login or become a subscriber.

About the Author

Bernard G. Prusak is associate professor of philosophy and director of the McGowan Center for Ethics and Social Responsibility at King's College in Wilkes-Barre, Pennsylvania.