Scalia and Breyer Discuss Constitutional Interpretation
Howard Bashman has links to a video of Justice Breyer and Justice Scalia discussing constitutional interpretation at a Federalist Society gathering.
I love this Scalia quote at 29:30:
The issue is whether a judge can say “the Living Constitution” has morphed . . . that’s the Living Constitution I’m talking about, and it’s the one that I wish would die.
At another point, Justice Breyer discussed the need to analyze history in the context of using originalism. Discussing the Stogner decision on ex post facto application of laws extending statutes of limitations, Justice Breyer said: “And I had to go into the history. Which I don’t always do. But it was an issue and I went into it.”
To which Justice Scalia responded: “Try it! You’ll like it!”
Justice Scalia, with his typical good humor, made his usual compelling case for judging constitutional provisions according to the reasonable meaning of the provisions when they were enacted. He said that if we were going to have a Constitution judged by what the current society thinks, then it should be interpreted by Congress, a body composed of elected officials who are presumably more in touch with what current society thinks than unelected judges are. Justice Scalia got a laugh when he declared: “I don’t have any idea what the current society thinks. I don’t want to know what the current society thinks!”
Dahlia Lithwick has her account of the discussion here. She compares Justice Breyer to Sesame Street’s Grover, and Justice Scalia to Oscar, the lovable grouch. It’s not a bad piece, and it picks up most of the same lines I noticed. But her characterization of the Justices’ relative manner doesn’t square with the video I saw:
From the moment he takes the stage, Justice Breyer looks outward. He shifts in his seat constantly to catch the eye of the moderator, ABC’s Jan Crawford Greenburg, and then to make eye contact with individual audience members. When Scalia speaks, Breyer nods and bobs. Justice Scalia turns inward, folding up his arms and gazing raptly into the middle distance. As Breyer speaks, Scalia first smirks, then giggles, then sort of erupts with a rebuttal, usually aimed right at the tips of his shoes. Where Breyer is ever striving to connect to the world, Scalia is happiest in his head. Throughout the debate, Breyer continues to measure, aloud, whether he and Scalia are “making progress.” Scalia laughs that Breyer’s hopes for the evening are too high.
She does acknowledge that “Scalia is charming and—as ever—riotously funny.” But her description still makes Scalia sound nasty at times, with his “smirks” and alleged refusal to connect with the audience.
In truth, Breyer’s concerns about “making progress” are not serious; they are clearly a running joke. Breyer pretends to be on a mission to convert Scalia to his method of Constitutional interpretation during the course of the talk, but it’s clearly tongue in cheek. He knows there is no chance.
Lithwick captures this moment well:
The justices enter into a side skirmish over the high court’s religion jurisprudence—a skirmish that launches Scalia into a delicious impression of the Frenchman who described to him the difference between France and America: “Justice Scalia,” he minces, “France is a country with 300 cheeses and two religions. The United States is a country with two cheeses and 300 religions.”
Breyer cracks up: “But why does the Frenchman have an Italian accent?”
I’ll add that Scalia had a hearty laugh at that. Then he said wryly, with good humor: “Well, at least I tried.”
If you’re interested in such matters, watch the video. It’s nothing particular new if you’ve seen Scalia speak before — but if you have seen him speak, you know that it’s a treat, because he is so funny. And the video gives an interesting insight into Breyer’s thinking. It’s well worth your time.
Amateur body language analyzation. What’s next, judging our public figures’ political persuasions by their clothes?
Anwyn (9b5f79) — 12/7/2006 @ 8:00 amOr rather, judging their clothes by their political persuasions.
Anwyn (9b5f79) — 12/7/2006 @ 8:01 amConceptually (as opposed to instrumentally) the biggest drawback to Originalism is that it bootstraps–the Constitution itself doesn’t say anything about it being interpreted according to Originalist theories.
The real problem is that it’s too hard to overhaul the Constitution–the political folks have punted that one to the judicial branch. It wasn’t the legislative branch which figured out that racial segregation had to go.
Geek, Esq. (7fb9f3) — 12/7/2006 @ 8:17 aman obvious attempt at painting scalia as an entrenched ideologue with no ‘forward’ or enlightened thinking while defining breyer as an openminded and ‘in touch’ justice. leaves all credibility shattered after the first paragraph
dksuddeth (ac44fb) — 12/7/2006 @ 8:21 amVideo: Scalia vs. Breyer…
If you’ve got a spare 90 minutes or so, I highly recommend watching this debate debate between Justice Scalia and Justice Breyer. Not only is it incredibly interesting but it’s also very entertaining. I’m a little less than half way……
The Political Pit Bull (64479c) — 12/7/2006 @ 8:34 amGeek, Esq,
You write that:
Conceptually (as opposed to instrumentally) the biggest drawback to Originalism is that it bootstraps–the Constitution itself doesn’t say anything about it being interpreted according to Originalist theories.
The Constitution says nothing about being a “living breathing document” either. Nor does it state that judges should just make up what they want it to mean. So, this does not really resolve the argument. It seems to me, and many others, that the argument for originalism is stronger than the argument for a “penumbra” creating the constitutional right to abortion, for instance.
The real problem is that it’s too hard to overhaul the Constitution–the political folks have punted that one to the judicial branch.
So, the problem in your mind is that the constitution needs to be overhauled but that pesky amendment process is in the way? Not sure what else you could mean by this.
It wasn’t the legislative branch which figured out that racial segregation had to go.
Well, it’s not altogether clear that segregation would not have been solved legislatively – but it certainly would have taken longer. But, one good outcome (i.e., desegregation) does not mean that we should abandon democracy to judicial tyranny. After all, segregation was the outgrowth of another judicial opinion creating “separate but equal”.
Were it not for Roe v. Wade, the issue of abortion would have likely been settled in this country a long time ago – as it would have been settled democratically, which would have given whatever the end result was a stronger foundation. Most likely, wome states would have legal abortion, some would have no legal abortion, some would have abortion with restrictions. The pro-life movement would not have gotten off the ground, and the federal government would likely not be involved. Instead, we are where we are because of judicial overreach and legislating from the bench.
– GB
Great Banana (aa0c92) — 12/7/2006 @ 12:57 pmThe reason it’s so hard to change the Constitution is because the guys who wrote it new that there would be many temptations for easy solutions that would devolve the nation into a state far worse than England had been before. Making it so difficult to change means that changes to the national government are done with great deliberation and not acted on in the heat of the moment.
The 9th and 10th amendments were added to make it clear that while the federal government was bootstrapped, the states weren’t, and so long as they played within those very broad boundaries, they could try anything they wished as long as it was desired by their own residents.
Allen (d8619b) — 12/7/2006 @ 1:03 pmWe should all be glad lawyers haven’t discovered “living, breathing” with regards to contract law – they are still stuck with the old-fashioned notion that the meaning of the words in the contract is what they commonly meant at the time the contract was written.
Frank N Stein (38ff57) — 12/7/2006 @ 4:03 pmAgreeing with the originalist interpretation of the Constitition is a separate issue from realizing it should be interpreted. And unless you think contracts and contract-like constructs like the Constitution are content-free, it seems obvious that what they mean is what those who wrote it wanted it to mean. And if you don’t like what it says, use the approved method for changing it.
See for example the difference between alcohol prohibition, and our current War on (some) Drugs. At one time in the not too distant past, even the most over-bearing politico still thought the Constitution should be followed. Oh well, there’s nothing for us to do about it – I’m with Billy Beck, all we can do is witness (and narrate) the ongoing Endarkenment.
Both are brilliant jurists, coming from largely different perspectives, but its a sad comment on American life that Supreme Court Justices, like elected representatives have to trot out their views on Constitutional jurisprudence on the, what is it, ‘rubber chicken circuit,” to see if they are popular.
Daniel (9f37aa) — 12/7/2006 @ 7:41 pmIf Supreme court Justices were really interpreting the constitution (instead of channeling the latest poll numbers or their insights from the Oprha show), shouldn’t they live and issue rulings from a secret government facility in the mountains of Alaska? Constitutional monks–reading only the documents of 1787? Yeah, dream on?
As a previous poster noted, an interesting and enjoyable hour and half video. Besides the intelligence of both, what struck me is the downright civility of these two who obviously have different leanings — contrasted with the vitriol spewed by some of the more radical (mostly left leaning) individuals you see on various websites.
Charlie (22cc32) — 12/7/2006 @ 10:04 pmFrank Stein,
“At one time in the not too distant past, even the most over-bearing politico still thought the Constitution should be followed.”
The 19th century was filled with controversies over the proper means by which to interpret the Constitution. This debate is not even a remotely new one.
Horace_ (cbe5f9) — 12/10/2006 @ 9:40 pm