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10.05.2010

Book review of Making Our Democracy Work

Our colleague David Fontana of George Washington University has a book review of Justice Stephen Breyer's new book here. An excerpt: "It is hard to understand Breyer's approach to the Constitution without first considering the alternative that he is responding to, conventionally called originalism. Originalism, as Scalia has described it, means that the Constitution should be interpreted according to what those alive at the time of its drafting thought its words meant. By any measure, originalism has become a major source of constitutional meaning, relied on by courts and politicians alike. When the Supreme Court decided its landmark gun rights case in 2008, Heller v. District of Columbia, the liberal and conservative justices didn't argue mostly over whether original understanding was important -- instead, they argued about what the correct original understanding of the constitutional right to bear arms should be. Liberal or conservative, we are all originalists now.

But Breyer wants courts to rely on much more than just originalism, and he argues for a vision of the Constitution focused not just on opinions from the 18th century but also on considerations from the 21st. Breyer believes that, in ruling on constitutional issues, judges should also look to "history, tradition, precedent . . . purposes and related consequences," all in an attempt "to help make the law effective" and to help courts engage in a workable relationship with the other branches of government."

It seems safe to say that this debate is largely American. Originalism seems to have had less impact in other jurisdictions. In part this might be because other countries do not have the same quasi-religious veneration for constitutional founders, who in many cases are still active politicians; it might be because the Breyer position is so widely accepted as not to provoke controversy.

--TG

1 comment:

  1. 1. If I recall correctly, Justice Barry Strayer – who as Trudeau's Attorney-General was largely responsible for the precise drafting of the Canadian Charter of Rights and Freedoms in 1982 – later testified before the Supreme Court of Canada that he and the other drafters had never intended for "fundamental justice" to imply any substantive rights: it was meant to guarantee fair procedure only. The Supreme Court said, thanks for your advice, Mr Strayer, but then adopted the opposite interpretation.
    2. The first Justice of the High Court of Australia had been Founding Fathers who had taken part in the constitutional conventions of the 1890s. Sir Samuel Griffith, while Chief Justice of Australia, used to tell counsel that he wrote the Constitution so he knew what it, meant, thank you very much! But after 1920, a new generation of Justices had been appointed to the Court, and as a result it began to move in the direction of literalism rather than originalism.

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