Reading the Constitution: Why I Chose Pragmatism, Not Textualism

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. (Mar.)