Review: Reading the Constitution by Stephen Breyer

The conservative legal movement in the United States has significantly influenced American jurisprudence and has fundamentally reshaped the interpretation of the US Constitution. Emerging in the 1970s as a reaction to the perceived liberal judicial activism of the federal judiciary under the Warren and Burger courts, the movement was motivated by a need for a judiciary that exercised self-restraint and strictly followed the original meaning and purpose of the Constitution. Antonin Scalia and members of a small group of conservatives known as the Federalist Society argued for “originalism” and “textualism” and advocated for interpreting the US Constitution in accordance with its original meaning and statutes and with the literal interpretation of the legislative text. Today, as Justice Elena Kagan of the US Supreme Court noted, “[w]e’re all textualists now, in a way that just was not remotely true when Justice Scalia joined the bench.”

Traditionally, courts endeavour to construe statutes in a manner that aligns with the “original intent” or “purpose” of the legislature. To achieve this objective, courts would frequently refer to the legislative history behind the enactment of a statute in an effort to ascertain the intent of the legislature. This is so as the statutory text itself is often not dispositive and may contain words that create absurdity, inconvenience or are inconsistent with the intention or purpose of the statute. In such cases, emphasis is to be laid on the intention of the legislature and also the purpose of statute — similar to the use of what is known in India as the “golden rule of interpretation.” As a consequence, the text is frequently rendered ineffective by legislative history that contradicts its ordinary meaning. In the US, this approach grew in popularity and became a common methodology used by the Supreme Court during the Warren and Burger Courts.

The judicial appointments of William Rehnquist and Scalia, however, led to the conservative turn of the modern Supreme Court. In a radio address, President Ronald Reagan famously justified his nomination of Rehnquist as Chief Justice and Scalia as an Associate Justice by remarking that “[t]oo many judges were taking upon themselves the prerogatives of elected officials... I argued the need for judges who would interpret law, not make it. The people, through their elected representatives, make our laws; and the people deserve to have these laws enforced as they were written.” And in Scalia, Reagan found a vociferous supporter of conservative principles and a Justice inclined to reverse New Deal era judicial rulings. Scalia, a prominent proponent of textualist interpretation, has since occupied a prominent and contentious position among the Supreme Court’s justices. He believed that legislative history was not dependable and did not accurately represent the intentions of the legislature as a whole. To ascertain the actual agreement between both Congress and the President, he stated that one must examine the text’s ordinary meaning. Scalia opposed the use of legislative history based on constitutional grounds, contending that the pursuit of legislative purpose was inherently anti-democratic as the task of the judicial branch was to only interpret the legislation.

On the other end of the spectrum stood Justice Stephen Breyer, who for nearly 30 years as an Associate Justice was the Court’s leading purposivist, often finding himself in the minority and often finding fault with the Court’s construction of statutes and treaties, as he notably did in Medellin v Texas (2008), as looking “for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language).” In Reading the Constitution: Why I Chose Pragmatism, Not Textualism, Breyer’s motivation is to continue his challenge to the rise of textualism. He instead advocates for a “traditionalist” or “pragmatic” approach that considers not just the text itself but also its intended purpose and contends that judges who attempt to exclude factors such as changing societal norms and legislative history as diminishing the “effectiveness and vibrancy of their interpretive palette… deprive themselves of a useful tool for determining a statute’s purpose” (Chapter 7). Reading the Constitution begins with a comprehensive examination of the textualist philosophy, and Breyer offers a lucid and succinct elucidation of this methodology, rendering it easily comprehensible to those who are unacquainted with legal jargon. However, he promptly transitions to criticize this approach and contends that a rigid devotion to textualism might result in judgements that are disconnected from the realities of contemporary society. Breyer highlights the need for considering the broader context in which laws are passed and the “practical consequences” of different interpretations. He refers to the majority judgment in New York State Rifle and Pistol Association v. Bruen (2022), in which he dissented. The Court held, 6–3, that New York’s law requiring a citizen to have a license to carry a gun outside his home violated the right to carry arms under the Second Amendment to the Constitution. Breyer expresses his disagreement with the ruling by emphasizing his preference to prioritize the practical implications. Considering the alarming patterns of gun violence in the US, Breyer believes the Court should have limited the access to firearms.

Breyer’s criticism of textualism is based on his adherence to pragmatism. He contends that judges should endeavour to interpret the Constitution in a manner that is pragmatic and adaptable to the requirements of modern society. According to him, this approach is better aligned with the intentions of the Constitution’s framers, who intended for the constitution to be “workable” and responsive to evolving circumstances. Breyer points to how the textualist approach in emphasizing “original intent” is often inconsistent with precedent and refers to the judgment in Brown v Board of Education, which has become a topic that textualist do not relish discussing. In Brown, the Court overturned Plessy v Ferguson to hold that the Fourteenth Amendment prohibited racial segregation in public schools. Breyer points to how the textualists ignore the weight of historical evidence that the drafters of the Fourteenth Amendment did not perceive their actions as abolishing segregated schools. He notes that the “desegregation efforts, and their support among much of the general public, may have influenced both the Court’s approach to that case as well as its drive to enforce the Constitution’s criminal procedural rights and other basic human rights” (Chapter 19). “To place determinative weight on the way in which eighteenth-century speakers used particular words is to ask judges to perform a task they are not well qualified to perform, and quite likely will not perform well. And the approach is regressive,” he says (Chapter 15).

Breyer’s meticulousness in examining even the most intricate facts is what distinguishes him as a conscientious judge. He argues that it is illogical to interpret legislation in a rigid and unchanging manner as change is constant. Instead, he calls for adopting a line of reasoning that considers the “democratic” and “humane values” of the Constitution. However, in present times, with a decisively conservative Supreme Court, Breyer and his progressivism may be outliers.

Saai Sudharsan Sathiyamoorthy is an advocate, Madras High Court