Very readable defense of intentions-based interpretation
Justice Breyer created a very readable defense of his approach of intentions-based Constitutional interpretation as compared to textually-literal interpretive styles. In relatively few pages, he makes the case for his point of view that purpose and o
Justice Breyer created a very readable defense of his approach of intentions-based Constitutional interpretation as compared to textually-literal interpretive styles. In relatively few pages, he makes the case for his point of view that purpose and outcomes should have a voice in Constitutional interpretation, presents a contrary point of view, acknowledges strengths in others' points of view, but also calls out their weaknesses. Most poignantly, he dashes the myth that a literal reading of the text protects against biased interpretation. He argues that we get no more of an activist judiciary one way vs the other, and that judicial modesty is an important quality in sitting on the bench.
From a layman's point of view, it makes sense that our system of justice is dynamic - not to rewrite meaning (that's the purpose of the amendment process), but to draw determinative conclusions to real conflict in evolving contexts from vaguely-written guiding principles. The genius of the Constitution is that the Founders must have foreseen the need for the application of the law to evolve, otherwise wouldn't they have used specific language?
Justice Breyer starts this treatise on a note of Modern liberty (freedom from government oppression) and Ancient liberty (participatory government). He uses this merely as context, and doesn't delve into the responsibilities that come with this liberty. While this book is subtitled "Interpreting our Democratic Constitution," it's fair to take this approach. I'm currently reading his next book subtitled "Making our Democracy Work." I would expect an expansion on the role of the citizenry in this, but so far (half-way through) it seems simply to be the extended play of "Active Liberty." More on that later.