’s newly published call for “pragmatism” rather than “originalism” or “textualism” as the best interpretive method. What Breyer’s suggestion amounts to is the anti-democratic idea that judges should be free to twist what the law says to suit their own prejudices — that is, they should be above the law rather than servants of it.
In a republic, applying “values” and trying to create the right “consequences” is the job not of judges but of the people’s elected representatives, or of the people themselves. The Constitution, as fundamental law enacted by the people, is supreme. Statutes written via representative procedures are next.
Judges applying the original public meaning of a constitutional or statutory text are engaged in a narrow academic exercise, not an expression of personal philosophy. To understand a text’s original public meaning, jurists have consistent and reliable tools. They look to dictionaries extant at the time of passage. They look at how a text was consistently applied in the contemporaneous aftermath of passage. They look to the legal history extant at the time.
To say this doesn’t allow laws to “change with the times” is nonsense. The Constitution sets up a comprehensive system whereby law can change with the times. Fundamental law, meaning the Constitution itself, can be changed through amendments by supermajorities. Apart from that fundamental superstructure, the Constitution allows huge leeway for legislatures repeatedly to update statutes to change with the times.
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