History

Maybe It's A Good Thing Justice Stephen Breyer Isn't An Originalist

|

You've got to remember, it's a living document.

Because he just flunked Constitutional History 101. As the Harlan Institute's Josh Blackman reports:

John Adams was in Europe during the drafting of the Constitution, and did not return to the United States until 1788.

Listen to Justice Breyer's interview on NPR at 1:20. Terry Gross asks about his view of the Constitution. Justice Breyer replied:

"I can say what I think, I think we are following an intention by people who wrote this document [the Constitution], Madison, Adams, Washington…."

NEXT: Reggie Bush, Libertarian Martyr

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. ummm, maybe techically correct, but I understood that the US Constitution drew heavily from the Commonwealth of Massachusetts constitution, which was written by John Adams.
    Yes?

    1. This is very true. I don’t quibble with those who off-hand include Jefferson and Adams when talking about the Constitution, or Washington when it comes to the Declaration. Yes, they weren’t there, (and in Jefferson’s case that’s a particularly great loss), but their ideas and political influence was heavily felt both at Philadelphia and in the ratification process. That’s why they were both Adams and Jefferson were elected/appointed to high office immediately upon their return.

      I’d much rather blast Breyer for having the shocking audacity to state that burning a Quran might not be protected by the first amendment, citing an unduly-famous rhetorical flourish from a long-overturned case that upheld the imprisonment of a man who threw Yiddish anti-draft pamphlets out his window during WWI.

      1. So what are the particularly Washingtonian ideas that are reflected in the Declaration. Other than “we really better win this war”?

        1. That’s about it, really. He had less influence than Jefferson and Adams did on the Constitution. But it’s undeniable that the (somewhat unjustified) confidence he inspired played a major role in convincing the Congress to act.

      2. I’d much rather blast Breyer for having the shocking audacity to state that burning a Quran might not be protected by the first amendment

        Why cannot we do both? Public embarrassment is a useful weapon.

        1. Yeah, but I don’t really see anything embarrassing about this. No serious constitutional scholar would deny the huge influence Adams had. One need not list the historical explanation of his absence from Philadelphia every time one lists the framers of the Constitution, even if one uses the technically mistaken term “written by…” I don’t doubt that all the Justices are familiar with the role Adam’s Massachusetts constitution played in early American con law.

  2. Breyer doesn’t actually have any sort of Constitutional theory at all.

    What he has is a belief that everything should be decided on his own personal opinion as to what is right or wrong.

    And “Constitutional” references he makes are merely blather designed to further that process.

    1. That’s a little harsh, Gilbert.

      I think that Breyer does have a theory of the Constitution, namely, that it is an outmoded document unsuited to Modern Times where we are blessed with rule by Great Minds.

      However, the little people will cling to their traditions, so it is best that we know overtly cast it aside. Rather, we will apply our Great Minds to justifying (via sophistry) whatever it is that Needs Doing for the Greater Good as being perfectly in keeping with the vision of the Founders.

      1. There’s that pesky Tenth Amendment…

        1. can anybody summarize the above linnk. I can’t take the orange-on-black, and the prose ain’t really that hot either.

  3. Maybe he meant Sam Adams Summer Ale, which the other founders surely were drinking by September?

    1. Just had a pint of it. Good stuff.

  4. “people who wrote this document [the Constitution], Madison, Adams, Washington?.”

    …Lincoln, Reagan…

  5. Adams was in Europe, but he followed the proceedings closely on television. If you were from Delaware, you’d know that.

    1. tweeted through the entire convention

    2. It was FDR who appeared on television.

  6. Of all the many, many objectionable things about this SCOTUS justice, not knowing this obscure detail seems to be pretty nitpicky.

    1. It’s not obscure. It’s about who wrote the fucking constitution Breyer purports to interpret. In other countries the supreme court would be called the constitutional court. And John Adams was not a fucking nobody. He was among the most influential founding fathers. And the second President.

      1. who did write the fucking constitution? the same guys who wrote the regular version?

        1. John Stagliano, Peter North, and Ron Jeremy.

          The Pounding Fathers. (ba-dum-dum)

        2. Ba dum tssshhh.

          Get it right dick head.

      2. Most of the people here would, before reading this post, be unsure about the answer to this tidbit.

        I think it is far more important to know what the Constitution means, rather than who was involved in its writing.

  7. I heard the beginning of the NPR broadcast on the radio (I assume it’s the same one referenced here) Where Gross mentions the right to freedom of speech and then asks what about the right not to be offended by seeing somebody burn the Koran?

    I had turn it off after that. Anyone who starts with a premise that there could exist such a thing as a ‘right not to be offended” is too far gone to pay any attention to.

    1. What about my right to not be offended by people who are thinking about violating the rights of others in order to keep from being offended?

      What about me?

    2. Unfortunately, we have to pay attention, since there’s an awful lot of people, maybe a majority, for whom that flawed premise doesn’t even register as a problem.

      But yeah, I’m conditioned now to change stations as soon as I hear Gross, regardless of the subject.

    3. I listened to most of it while driving home. Terry Gross’s ignorance of constitutional law was astounding (she’s a filthy lib but at least she’s usually well prepped).

      My favorite question (from memory): “Do you think if all Supreme Court justices had interpreted the Constitution literally, we would still have slavery?”

      WTH?

      1. This is the favorite “progressive” comeback to originalism/textualism. As if slavery was abolished by Progressive justices choosing to treat the constitution as a living and breathing document. Slavery was abolished by express amendment which is now part of the text of the document so, no, reading the constitution as amended literally, there would still be no slavery.

        1. I’m sorry…that stupid question she asked really galls me.

          Gee Terry, if justices read the constitution literally, we’d only have 13 states!

          1. I know — a real yell-at-the-car-radio moment.

        2. Exactly. The Dred Scott decision was not, as many would have you believe, a “literal” interpretation of the Constitution. But it wasn’t justices changing that interpretation that abolished slavery. It was a war. And the victor passed the 13th Amendment.

          And, who listents to Terry Gross for fuck’s sake. Get XM and listen to The Elvis channel!

          1. Never! Paying for radio is where I draw the line.

        3. Slavery was ended by the bible thumpers

    4. Where Gross mentions the right to freedom of speech and then asks what about the right not to be offended by seeing somebody burn the Koran?

      The state of Texas made similar arguments about the burning of the American flag in Texas v. Johnson .

  8. Breyer was trying to out-original the originalists…and failed. He made a big point of saying that the right of the “people” to keep and bear arms meant the right of the states to establish militias. But the amendment doesn’t protect the right of the “states” to keep and bear arms….just the people. Even if you buy into his rationale, the amendment still comes down to the intent to decentralize possession of guns. Perhaps that is why his argument failed.

    1. One of the biggest accomplishments of originalism (so far) has been changing the terms of debate like this. In that sense, everyone is an originalist now.

      1. Breyer even wrote a book on the living Constitution, and there he was trying to channel John Adams….er, James Madison.

  9. I listened to a small portion of the interview where he calmly discussed – in the most pedantic manner – why the Second Amendment was not (even from an originalist point of view, he claimed) intended to provide a right to self-defense. (Specifically regarding whether the 2nd Amendment protected the right to keep a pistol in Washington, D.C. to fend off burglars.)

    From what I heard, it was a very calm, cool, collected exposition – but profoundly intellectually dishonest. He sounded not at all unlike a defense attorney who knows his client is guilty of the most heinous of crimes and is sure that his client will continue to commit them, yet feels that he is still obliged to provide the strongest defense of the morally repugnant that he can muster.

    Except that Breyer seems to feel that arguing for morally repugnant concepts is his true calling in life and that to him, the repugnant is aspirational. (He also comes across as a guy who has never had his heart rate accelerate in fear in his entire life, not from an surfeit of bravery but from a deficit of personal risk… but that could just be how he comes across to me.)

    1. Yes indeed, his profound intellectual dishonesty and disingenuousness comest through loud and clear in the dissents to both Heller and McDonald. As I read those, I kept asking myself, “do these dissenter even belief this horse shit themselves? Or are they so wed to this ridiculous notion that guns must be outlawed at all costs that they have simply become unhinged from actual fact?”

      1. Yes indeed, his profound intellectual dishonesty and disingenuousness comest through loud and clear in the dissents to both Heller and McDonald. As I read those, I kept asking myself, “do these dissenter even belief this horse shit themselves? Or are they so wed to this ridiculous notion that guns must be outlawed at all costs that they have simply become unhinged from actual fact?”

        The latter, I suspect.

  10. I wanted to give him the benefit of the doubt, that maybe he meant Sam Adams…but he wasn’t there either, alont with Hancock and Henry.

  11. Aside from that he’s a fucking liar. There’s no “compelling state interest” escape clause anywhere in the Bill of Rights, for instance, yet the SC whips that out at the drop of a hat.

    1. Imagine if the state interest was “really, really, super-duper compelling”. Then the federal government could do whatever it wants.

  12. Maybe he meant Gomez Addams.

  13. I listened to a small portion of the interview where he calmly discussed – in the most pedantic manner – why the Second Amendment was not (even from an originalist point of view, he claimed) intended to provide a right to self-defense.

    That’s a pretty good litmus test for whether or not you should take seriously anything such a person says about the Constitution.

    If they don’t get that much, then the odds are good they don’t get any of it.

    1. My right to “life”, as stated in the Declaration of Independence, comes for the “Creator”, whoever that may be. It definitely does not come from any piece of paper. Even the 2nd Amendment. I can defend that life in whatever way I believe is best. I am happy to let the state protect it for me, as long as they are able to do so. Unless thay are going to have a “protector” with every American 24/7 (and who really wants that?), there are some times that they cannot defend my life, or the lives of my loved ones. I choose to protect it with guns. They are better than knives, stick or bows and arrows. Some choose to not protect themselves. More power to them.

      1. rac – Point taken. I should have written “intended to provide legal protection to the right to self-defense.”

    2. Breyer is saying that “self-defense” is OK so long as it is part of a militia event and the enemy is in a neatly-pressed soldier’s uniform. But self-defense can be outlawed in your house. What happens to the circumstances that fall between these two endposts? Well that’s just more power for the court…..

  14. Define: Nitpick

  15. RC – Yeah, too bad this guy is 1/9th of the votes on the subject. Sadly, “fundamental failure to understand the concept of natural rights” and “Democratic nomination to the Supreme Court” seem to go hand in hand.

    Even when this guy is voting in favor of reproductive rights he does it from a fundamentally unsound position – trying to invent rights rather than simply focusing on a natural rights approach. (Maybe that’s just what happens when we get a SCOTUS justice who is arrogant enough to discard the most elegant solution to individual liberty yet devised by mankind for his own muddled approach?)

  16. While listening to it, I just got the impression that Terry Gross was just trying to involve him in her web of opinion and popular belief.

    Because, you know, of those damned “activist judges” on the other side, and her clear moral conviction that she’s in the right.

    NPR has vays of making you talk…

    1. “Please be so kind as to step into this box I have created for you.”

      I was glad that he didn’t adopt her terminology, but I wish he had corrected more of her misperceptions.

  17. Terry Gross is creepy. I’m glad she’s stays in her little studio room & doesn’t roam the streets at night.

    1. And you know what the best part is? We pay for her inanity with our taxes. YIPPEEE!

  18. If you don’t want your noggin to asplode, don’t read Breyer’s book in which he explains his view of interpreting the Constitution.

    A friend of mine gave it to me several years ago. He basically said you need to know your enema. Or something like that.

  19. Contrary to popular belief, SC justices are not “lifetime” appointments, but for a term of “good behavior.”

    Some of the smelly horseshit that has come out of Breyer’s mouth should definitely drop him into the “bad behavior” category.

Please to post comments

Comments are closed.