Omar Bennett
The interpretation of the US Constitution has been a subject of debate between Supreme Court Justices Stephen Breyer and Antonin Scalia. Justice Scalia, a proponent of originalism, argues for a strict constructionist approach, focusing on the plain meaning of the text as understood by the public when it was ratified. On the other hand, Justice Breyer advocates for a progressive vision, interpreting the Constitution in light of its text, purposes, and contemporary experiences. This debate has significant implications for judicial rulings on various constitutional law issues, such as gay rights, states' rights, and racial segregation.
| Characteristics | Values |
|---|---|
| Justice Scalia's philosophy | Textualist, strict constructionist, originalist |
| Justice Breyer's philosophy | Developmentalist, evolutionist, progressive |
| Scalia's approach | Original public meaning, 18th-century |
| Breyer's approach | Living constitutionalism, principles-based, progressive |
| Scalia's focus | Plain meaning of the text |
| Breyer's focus | Text, purposes, and experience |
| Scalia's argument | Understanding of the Constitution as it was at the time of its writing |
| Breyer's argument | The Constitution must be interpreted in a modern context |
| Scalia's example | Recess appointments should be read narrowly |
| Breyer's example | School desegregation |
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What You'll Learn
Originalism vs living constitutionalism
Originalism, as defended by Justice Antonin Scalia, is the theory of constitutional interpretation that says judges must apply the original understanding of the constitutional text. This method considers the plain meaning of the Constitution's text as it would have been understood by the general public or a reasonable person who lived at the time the Constitution was ratified. Scalia argues that originalism requires reading the text narrowly, focusing on the specific context of the time.
In contrast, Justice Stephen Breyer is a proponent of living constitutionalism, which holds that constitutional law should evolve and be interpreted in light of its text, purposes, and the whole experience of those who live under it. Living constitutionalists argue that the Constitution should be interpreted broadly, allowing it to adapt to changing circumstances and values. During a debate with Scalia, Breyer pointed out that a strictly originalist interpretation of the Constitution would likely prove useless in today's society, highlighting the issue of school desegregation as a moral triumph that would not have been possible under an originalist interpretation.
Originalism and living constitutionalism represent two opposing approaches to constitutional interpretation. Originalists argue for a fixed meaning of the constitutional text, while living constitutionalists advocate for a more flexible and adaptive approach. While originalism prioritises the preservation of the framers' intentions, living constitutionalism emphasises the relevance and applicability of the Constitution in contemporary society.
The debate between Scalia and Breyer illustrates the ongoing tension between these two schools of thought. Scalia's originalism seeks to uphold the founders' expectations and the plain meaning of the text, even if it renders certain clauses anachronistic. On the other hand, Breyer's living constitutionalism aims to preserve the spirit and principles of the Constitution while allowing for interpretation that reflects the changing social, political, and cultural landscape.
In conclusion, the debate between originalism and living constitutionalism centres around the question of whether the Constitution should be interpreted narrowly or broadly. Originalists like Scalia argue for a narrow interpretation based on the original understanding of the text, while living constitutionalists like Breyer advocate for a broader interpretation that allows the Constitution to evolve and remain relevant in modern times.
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Textualism
However, Justice Stephen Breyer disagreed with Scalia's approach, countering that the Constitution would likely prove useless in today's society if it were so rigidly interpreted. Breyer offered a defence of "living constitutionalism", arguing that the Constitution should be interpreted "in light of its text, purposes, and our whole experience". He criticised Scalia's approach as "judicial excising in the name of liberty", arguing that it would render the Recess Appointments Clause "an anachronism" with no contemporary relevance.
While textualism and originalism are similar, they are not identical. Originalism considers the plain meaning of the Constitution's text as it would have been understood by the general public at the time of ratification, but it is not based solely on the text. Instead, it draws upon the original public meaning of the text as a broader guide to interpretation. Textualism, on the other hand, focuses solely on the text itself and the ordinary meaning of the language used, not just the possible range of meanings of individual words.
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Judicial precedent
Justice Scalia, a staunch originalist, argued that the Constitution should be interpreted narrowly through the lens of originalism. Originalism holds that the Constitution's meaning is fixed at the time of its enactment and that judges should interpret it according to the framers' original understanding. Scalia's originalist approach, also known as textualism, focuses on the plain meaning of the Constitution's text as it would have been understood by the public at the time of ratification. This method considers the historical context, including dictionaries of the period, to ascertain the original public meaning.
On the other hand, Justice Breyer advocated for a broader interpretation of the Constitution, embracing a progressive vision known as living constitutionalism or evolutionism. He argued that interpreting the Constitution rigidly within the framework of the 18th century would render it irrelevant in modern society. Breyer's approach emphasizes interpreting the Constitution "in light of its text, purposes, and our whole experience." He acknowledges that while the specific technologies or circumstances may not have been envisioned by the founding fathers, the values enshrined in the Constitution, such as those under the First Amendment, are permanent.
The concept of judicial precedent comes into play as prior Supreme Court decisions on constitutional law shape future rulings. While the Court routinely relies on precedent, the latitude afforded to justices in interpreting prior decisions allows for a dynamic application of the law. For example, in Planned Parenthood v. Casey, the Court relied on Roe v. Wade as a controlling precedent, reaffirming a woman's protected liberty interest in terminating her pregnancy.
In the debate between Scalia and Breyer, their differing approaches to judicial precedent are evident. Scalia, committed to originalism, seeks to interpret the Constitution narrowly through the lens of the framers' intentions. Breyer, on the other hand, favours a broader interpretation that considers the evolving nature of society and the need to adapt the Constitution's principles to contemporary challenges.
In conclusion, judicial precedent is a critical aspect of constitutional interpretation, influencing the approaches advocated by both Scalia and Breyer. While Scalia's originalism prioritizes the narrow interpretation of the Constitution's original meaning, Breyer's living constitutionalism calls for a broader interpretation that adapts to societal changes while upholding enduring values. The tension between these two perspectives highlights the ongoing debate surrounding the interpretation of the Constitution and the role of judicial precedent in shaping American jurisprudence.
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Formalism vs functionalism
Formalism, also known as textualism or originalism, is the theory of constitutional interpretation that says judges must apply the original understanding of the constitutional text. This approach considers the plain meaning of the Constitution's text as it would have been understood by the general public at the time it was ratified. Originalism requires reading the text narrowly, focusing on the specific intent of the framers. Justice Antonin Scalia is a prominent advocate of originalism, arguing that it is the proper way to interpret the Constitution. He believes that the Constitution should be interpreted based on its original public meaning and the specific context in which it was written. Scalia's approach is often described as strict constructionism, emphasizing a narrow interpretation of the Constitution's provisions.
On the other hand, functionalism, also known as living constitutionalism or evolutionist, is a theory that interprets the Constitution broadly in service of its "reason and spirit". This approach is associated with Justice Stephen Breyer, who argues that a rigid interpretation of the Constitution would render it useless in today's society. Breyer's philosophy is developmentalist and evolutionist, believing that the Constitution should be interpreted "in light of its text, purposes, and our whole experience". He emphasizes that while the specific technologies and circumstances may not have been envisioned by the founding fathers, the values they enshrined in the Constitution are permanent and should be applied to new situations.
The debate between Scalia and Breyer highlights two contrasting approaches to constitutional interpretation. Scalia's formalism emphasizes fidelity to the original understanding of the text, while Breyer's functionalism prioritizes adaptability and the ongoing relevance of the Constitution in a changing society. The choice between these approaches has significant implications for judicial rulings across a range of constitutional law issues, including gay rights, states' rights, and civil rights, as exemplified in cases such as Brown v. Board of Education.
While formalism provides a stable foundation for interpretation, it may struggle to adapt to modern contexts and societal changes. On the other hand, functionalism allows for a more dynamic interpretation of the Constitution but may introduce subjectivity and uncertainty. The Supreme Court's interpretation of the Constitution has been criticized for being too narrow in some cases, leading to concerns about the protection of fundamental rights. However, as UCLA School of Law professor Adam Winkler notes, there is no "perfect" theory of constitutional interpretation, and each approach has its strengths and weaknesses.
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Active liberty
In his book, *Active Liberty: Interpreting Our Democratic Constitution*, U.S. Supreme Court Justice Stephen Breyer lays out his judicial philosophy, arguing that judges should decide cases in a way that allows the public to maximise participation in government through what he calls "active liberty".
Breyer's "active liberty" is a progressive vision of the Constitution, articulated in his books and in his opinion in the recess appointments case. It is a rejection of Justice Antonin Scalia's originalist approach, which holds that the original understanding of the constitutional text is the proper way to interpret the Constitution. Scalia's originalism, or textualism, focuses on the plain meaning of the text as it would have been understood by the general public when the Constitution was ratified.
In contrast, Breyer's "active liberty" calls for interpreting the Constitution "in light of its text, purposes, and our whole experience". This approach requires judicial modesty and deference to Congress, as well as recognising the changing needs and demands of the populace. The Constitution's principles, Breyer argues, may be adapted to cope with unanticipated situations, and it should not be treated as a static guide intended for a past era.
Breyer's "living constitutionalism" is a democratic interpretation of the Constitution, with the Constitution's primary role being to preserve and encourage "active liberty": citizen participation in shaping government and its laws. This view has been criticised as an "uncontrollable liberal" and "wild-eyed radical" perspective, but Breyer presents a forceful defence of his approach, arguing that it is necessary to keep democracy in mind when deciding court cases brought forth on the grounds of the U.S. Constitution.
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Frequently asked questions
Scalia, a textualist, and originalist, argues that the Constitution should be interpreted based on the original public meaning of the text. This approach considers the plain meaning of the Constitution's text as it would have been understood by the general public at the time of its ratification. Scalia believes that interpreting the Constitution narrowly ensures that the original understanding and intent of the founding fathers are upheld.
Breyer, a developmentalist, and evolutionist, believes that the Constitution should be interpreted in light of its text, purposes, and the collective experience of society. He argues that a broad interpretation allows the Constitution to remain relevant and adaptable to modern times and societal changes. Breyer contends that a rigid, narrow interpretation of the Constitution would render it useless in addressing contemporary issues.
Interpreting the Constitution narrowly, as Scalia suggests, may lead to an outdated application of the law, failing to account for societal progress and changes in context. On the other hand, interpreting the Constitution broadly, as Breyer proposes, may introduce subjectivity and judicial discretion, potentially leading to inconsistencies in judicial rulings. The broad approach may also face challenges in determining which contemporary issues should be included in interpreting the Constitution.
