Breyer v. Scalia

Today I saw an interesting bit on C-SPAN, where Justices Stephen Breyer and Antonin Scalia sparred on the merits of their respective approaches to interpreting the law. Scalia, a so-called originalist, believes that in deciding the law you should rely almost exclusively on what the text says and what the original intent of the law was when it was written, and is extremely wary of any sort of approach that implies that what laws mean--particularly those set forth in the Constitution--evolves over time. Breyer, on the other hand, believes that this is an impractical approach because the conditions in which those laws were created and in which the rationale for the laws emerged do not exist in modern society, and that a modern society could not function under a Constitution that was so anachronistically interpreted.

I was sympathetic to both sides, but one thing that didn't seem to be addressed was the fact that the reason, it seems to me, that they find themselves in this box in the first place is because the Constitution is so damn hard to amend. Passing Constitutional amendments is rare, and passing ones that are in any way controversial whatsoever is impossible (indeed, the Bill of Rights basically came with the Constitution; and the 13th, 14th, and 15th amendments only went through because there were no Democrats to vote against them--they had seceded). This means that, though the society itself may evolve considerably, the Constitution that governs it will remain frozen in place, allowing a very small minority to stop any kind of progress from happening at all. Of course, I'm not saying that there shouldn't be some supermajority requirements in order to amend certain basic rights--there should be (that's what makes them rights). It's just that the supermajority shouldn't be quite this difficult to achieve. The Framers, in other words, badly miscalibrated the mechanism for amending the Constitution.

And so Scalia's position, which I think is the more intuitive one, becomes unworkable--it would lead to a society in total disharmony with the supreme law of the land (imagine, for example, that Plessy v. Ferguson was never overturned). A more expansive interpretation of the Constitution, though, allows you to effectively change the Constitution extra-legislatively, relieving the tension between a modern, morally evolving society and a rigid Constitution. In fact, you could even say something like: the expansiveness of interpretation that is required to effectively govern with a Constitution is proportional to the difficulty of amending it.

So in the end, judicial interpretation, it seems to me, is tied to the basically empirical political realities presented by a Constitution that does not function very well. And whereas folks like Scalia see their task as mechanistically following their interpretive principles regardless of this fact--fiat justitia ruat caelum--other folks, like Breyer, see their task as doing the best they can to pragmatically apply an ancient document to a modern and dynamic society.