Stephen Breyer’s ‘Reading the Constitution’ overlooks his rival theory’s most valuable trait.
Over the past few decades, textualism—which holds that textual analysis best reveals a legal provision’s meaning—has established itself as the interpretive theory in American courts. It has drawn its strength from formalism emphasized by champions such as the late Justice Antonin Scalia, combined with what Judge Neomi Rao has called textualism’s “political morality.” Scalia regularly pointed out that a law’s words are the “objectified” evidence of its meaning, and Judge Rao has elaborated that focusing on such objectified evidence “follows naturally from the moral commitments at the heart of our constitutional system of government.” Textualism has become so dominant that it’s sometimes hard to remember how debates over interpretation sounded before they were waged on textualist grounds. What did lawyers argue about before we disputed semantic meaning, context clues, and canons of interpretation?
Retired Supreme Court Justice Stephen Breyer has written a book to try to remind us. In Reading the Constitution: Why I Chose Pragmatism, Not Textualism, Justice Breyer notes that he may be the last anti-textualist standing. By revisiting the interpretive theories that roamed the earth before the textualist meteor hit and showing how they helped him reach his conclusions in various cases, Breyer’s preferred arguments against textualism take shape. Along the way, he attempts to advance an alternative interpretive mode which, as the book’s subtitle suggests, he calls “pragmatism.”
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Tal Fortgang is an adjunct fellow at the Manhattan Institute and a fellow at SAPIR: Ideas for a Thriving Jewish Future.
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