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March 28, 2024

Former liberal Supreme Court Justice Stephen Breyer gave an interview to Politico to promote his new book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.”

When writing about legal issues, I always remind readers that I am not an attorney. But this interview makes me feel good because it shows that you don’t have to be an attorney to know more about the Constitution than a Supreme Court Justice. Of course, these days, you can say that if you just know what a woman is.

In this interview (and I assume, in his book), Breyer argues against originalism, or interpreting the Constitution as its writers intended. He finds that “inherently regressive” because it "will move the interpretation of statutes away from the direction of trying to help people." He claims that an originalist interpretation "will overlook lots of changes designed to further the value of protecting basic civil rights, because the world has changed."

Yes, and the Founders knew the world would change, which is why they built in a process for amending the Constitution. But they deliberately made that process difficult and time-consuming, to ensure that it represented the will of the great majority of the people as considered over time, and not just the fleeting opinions of nine unelected lawyers in black bathrobes who think the Constitution should say whatever they feel it should say on a daily basis.


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