Reading the Constitution
Why I Chose Pragmatism, Not Textualism
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4.0 • 4 Ratings
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- $16.99
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- $16.99
Publisher Description
A provocative, brilliant analysis by recently retired Supreme Court Justice Stephen Breyer that deconstructs the textualist philosophy of the current Supreme Court’s supermajority and makes the case for a better way to interpret the Constitution.
“You will not read a more important legal work this election year.” —Bob Woodward, Washington Post reporter and author of fifteen #1 New York Times bestselling books
“A dissent for the ages.” —The Washington Post
“Breyer’s candor about the state of the court is refreshing and much needed.” —The Boston Globe
The relatively new judicial philosophy of textualism dominates the Supreme Court. Textualists claim that the right way to interpret the Constitution and statutes is to read the text carefully and examine the language as it was understood at the time the documents were written.
This, however, is not Justice Breyer’s philosophy nor has it been the traditional way to interpret the Constitution since the time of Chief Justice John Marshall. Justice Breyer recalls Marshall’s exhortation that the Constitution must be a workable set of principles to be interpreted by subsequent generations.
Most important in interpreting law, says Breyer, is to understand the purposes of statutes as well as the consequences of deciding a case one way or another. He illustrates these principles by examining some of the most important cases in the nation’s history, among them the Dobbs and Bruen decisions from 2022 that he argues were wrongly decided and have led to harmful results.
PUBLISHERS WEEKLY
In this vital guide to judicial interpretation, former Supreme Court justice Breyer (The Authority of the Court and the Peril of Politics) argues against textualism, an approach conservative justices take toward jurisprudence, and advocates instead for the pragmatic method he adopted in his decades on the bench. Textualists claim to rely on the "plain meaning" of statutes, but Breyer contends that this approach elevates isolated statements made in an otherwise fluid piece of text into nonsensical "rules"; whereas Breyer's "purpose-oriented approach" takes into consideration each statement's meaning in the context of the law's overall "purposes, consequences and values." He walks readers through Supreme Court cases where common-sense laws were struck down by textualism, such as one concerning whether the FDA could promulgate anti-tobacco regulations to protect children. Most fascinating of all is his foray into judicial history (before the late 20th century, undertaking historical research to discover a law's intended meaning was commonplace for judges; now it's rarely done) and foreign counterexamples that highlight the ouroboros-like nature of the U.S. legislative process, where laws are continually being passed that are destined to be misinterpreted. In the U.K., for instance, government officials work to standardize legislative language before it is implemented, reconciling it with judicial interpretation, and thereby obviating the need for such fierce debate over intended meaning. Bursting with insight, this is sure to be an instant classic in legal circles.
