Washington Lawyer - September/October 2024 - 11

FEATURE
Though concerned, Breyer, who turned 86 in August, continues to have
faith in America's great experiment with democracy and in the enduring
workability of its Constitution.
" We have had slavery, the Civil War, Jim Crow. We did have some pretty
bad cases like Dred Scott ... It was terrible, " says Breyer, the Byrne Professor
of Administrative Law and Process at Harvard Law School. " America
has had its ups and downs, but, overall, the Constitution has helped hold
together over 330 million people as a nation. "
Justice Breyer's career as an American jurist is distinct for his pragmatic
and thoughtful approach to constitutional questions, expressed in majority
decisions and dissents. His latest book,
Reading the Constitution: Why I Chose Pragmatism,
Not Textualism, offers a guide for how to
apply the Constitution justly to real-world
matters.
Reading the Constitution, published this year, is
Breyer's response to the ascendant textualism
and originalism championed by his late colleague,
Justice Antonin Scalia. " The French
So, I see that's the way to go, and I explain why I think that, and I tried
to explain where we justices differed with different approaches.
McCulloch appears frequently in your book. The case is known
most famously for Justice Marshall's iconic line: " we must never
forget that it is a constitution we are expounding. " What is the
pertinence of McCulloch for today's handling of the Constitution?
I think Marshall explained in very simple terms what this document is
about. In McCulloch we have the question, did Congress have the power
to create a national bank? Do you know how many times the word
" bank " appears in the Constitution? Zero.
[The Constitution]
was written in its day
philosopher Montaine in 1584 in his last essay,
'Of Experience,' really foresees the argument
we are having now. He writes about it and says
[that] life is too complicated, life is too unforeseeable,
life is just all over the place. You can't
write a set of laws that is going to capture everything
that life will do to you, or to the country, or to the law itself,
or to government. You can't do it, so don't try, " Breyer says.
Speaking with Washington Lawyer from his office at Harvard Law School
in Cambridge, Massachusetts, Breyer shares his views on some of the
most contentious constitutional issues of our time and why we should
not take for granted the hard journey of maintaining the rule of law.
Reading the Constitution has a more direct urgency than your other
books. What was your impetus for writing it?
I wrote it for two reasons. I have been a judge for more than 40 years.
When you do something for a long time, you at least believe that you
have learned something about how you do this job. Well, let's tell people
how I do this, and when looking at difficult cases, how what I have
learned appl[ies]. And I explain the different tools that I use. So, one reason
is to tell law students, lawyers, and the general public how I did this
job.
The second reason is that [a] great movement has caught on with many
judges, professors, lawyers, and law students - that we have to just look
at the words of statutes and the Constitution, and nothing more. Justice
Scalia - and we were good friends - said don't look at purposes, don't
look at consequences, don't look at the underlying values; read the
words and other things that help with the semantics of the words.
Well, I don't think that is going to be very helpful in introducing a constitution
that is meant to work. Take the values of democracy, human
rights, separation of powers, equality, rule of law - take those really
basic values that are all over the Constitution and get them to work
over long periods of time. That's what Chief Justice John Marshall said
in McCulloch v. Maryland. It has got to work; deal with problems that we
can now see dimly, if at all, he said.
in general terms because [it]
has to deal with problems
that are seen dimly, if at all.
Then Marshall said the document does give
Congress the power to create the bank because
the Constitution is written at a high
level of generality. It has basic values within
it. Look to those, look to see what the words
are, look at the purposes of the clauses, look
to see how this document deals with problems
that this country - then 4 million people,
now more than 330 million - has had.
And it does work; it helps to keep us together.
To do that, you have to have interpretations
that work. It is a workable, practical
document.
You see that all over McCulloch, where Marshall
says, yes, we can establish a national
bank because there are problems that call for it. He is looking at purposes
and how they will help solve those problems. Marshall says don't expect
to have a list of every power Congress has; it is a constitution, not
a tax code. It was written in its day in general terms because the Constitution
has to deal with problems that are seen dimly, if at all.
You devote a whole chapter to Dobbs v. Jackson Women's Health
Organization. Please explain why, in your view, Dobbs was wrongly
decided.
Remember that textualists say their method will yield correct law - " We
promise you that we will keep judges from substituting their own views
for what's good for the law. " There are a few problems with that when
you get into constitutional law with this doctrine of stare decisis.
The textualists and originalists say, look at what people thought at the
time of adoption. Well, there was a group of people who weren't part of
the political community in the 1780s at the Constitution's adoption, and
in the 1860s with the Fourteenth Amendment's [adoption], [yet] comprised
probably more than half the population - women!
Looking at Dobbs, [the Court] overruled a case that is about 50 years old,
Roe v. Wade, and [Planned Parenthood v.] Casey, which is about 30 years
old. There is a doctrine called stare decisis where you don't overrule cases
unless you have a very strong reason. What was your very strong reason,
you ask a textualist or originalist. Was it because when [the Court]
wrote Roe, when the Court wrote Casey, it didn't use what you call originalism
or textualism?
They'll say no, that is not why, because if they say yes, then we will start
overruling just about every case because very few cases were decided
on the basis of textualism or originalism before this century. No one
would know what the law is.
SEPTEMBER/OCTOBER 2024 * WASHINGTON LAWYER 11
Washington Lawyer - September/October 2024

Table of Contents for the Digital Edition of Washington Lawyer - September/October 2024
