[The above video is mostly a
reading of the text below, with an occasional aside thrown in for good measure
as they strike me as relevant. I welcome questions, comments, or concerns about the material contained in
this video.]
Aimed at the non-specialist, Associate Justice Stephen Breyer's book does a good job at using some of the more important cases in the history of the Court to sketch his personal approach to the Constitution. He then discusses these cases in relation to how he formed his moderate, consequentialist, and pragmatic approach to interpreting the Constitution and various statutes.
Part I considers how the Constitution can ensure a workable democracy while at the same time maintaining its legitimizing power. More to the point, "why should a democracy, a political system based on representation and accountability, entrust the final or near-final making of such highly significant decisions to judges who are unelected, independent, and insulated from direct impact of public opinion?" (p. 4). Some of the cases Breyer looks in this section are Marbury v. Madison, the Cherokee Indian cases of the 1830s, Brown v. Board of Education, Dred Scott, and Bush v. Gore, and uses these cases to show the growth of popular acceptance of court decisions, beginning with Jefferson's refusal acknowledge Marbury's commission to the seeming blanket acceptance of the fact that the Supreme Court chose the President in 2000. The chronological discussion smartly considers the changing contours of public opinion and describes how the Court, an institution that began with almost no sense of judicial legitimacy, constructed it slowly over time. That Breyer considers the case of legitimacy first is telling, and it is obvious that Breyer knows that the Court is powerless without this assumed legitimacy.
Part II discusses some of the ways in which Justice Breyer believes the Court must maintain the public trust it has earned. Here, he spells out the differences he perceives between a "text-based" approach (which he argues against) and a "purposes-and-consequences" approach (which he advocates). The former seems roughly equivalent to an unchanging, ahistorical originalism on the order of what Justice Scalia argues for, while the latter resembles a living Constitution. Here, he discusses the role of federalism, the roles and specialties of other courts, and stare decisis.
Part III discusses individual liberties, especially the cases coming out of World War II (Korematsu and Hirabayashi) and executive power and accountability (Rasul, Hamdi, Hamdan, and Boumediene).
For someone who might be familiar with the history of the jurisprudence discussed above, as any law school graduate would be, the historical parts of the book will already be extremely familiar. While not an attorney myself, I had the pleasure of discussing this book with my partner who is one, which made reading it all the more enlightening, and the source of a lot of exciting discussion. I have always admired Breyer's moderate, pragmatic decision-making and read this book mostly to see how he constructed this approach. It's a really good synthesis of the history and opinion that gives a lot of insight into Breyer's opinions, and will shed some light on Breyer's hermeneutic decisions even for those familiar with the case law.
Part I considers how the Constitution can ensure a workable democracy while at the same time maintaining its legitimizing power. More to the point, "why should a democracy, a political system based on representation and accountability, entrust the final or near-final making of such highly significant decisions to judges who are unelected, independent, and insulated from direct impact of public opinion?" (p. 4). Some of the cases Breyer looks in this section are Marbury v. Madison, the Cherokee Indian cases of the 1830s, Brown v. Board of Education, Dred Scott, and Bush v. Gore, and uses these cases to show the growth of popular acceptance of court decisions, beginning with Jefferson's refusal acknowledge Marbury's commission to the seeming blanket acceptance of the fact that the Supreme Court chose the President in 2000. The chronological discussion smartly considers the changing contours of public opinion and describes how the Court, an institution that began with almost no sense of judicial legitimacy, constructed it slowly over time. That Breyer considers the case of legitimacy first is telling, and it is obvious that Breyer knows that the Court is powerless without this assumed legitimacy.
Part II discusses some of the ways in which Justice Breyer believes the Court must maintain the public trust it has earned. Here, he spells out the differences he perceives between a "text-based" approach (which he argues against) and a "purposes-and-consequences" approach (which he advocates). The former seems roughly equivalent to an unchanging, ahistorical originalism on the order of what Justice Scalia argues for, while the latter resembles a living Constitution. Here, he discusses the role of federalism, the roles and specialties of other courts, and stare decisis.
Part III discusses individual liberties, especially the cases coming out of World War II (Korematsu and Hirabayashi) and executive power and accountability (Rasul, Hamdi, Hamdan, and Boumediene).
For someone who might be familiar with the history of the jurisprudence discussed above, as any law school graduate would be, the historical parts of the book will already be extremely familiar. While not an attorney myself, I had the pleasure of discussing this book with my partner who is one, which made reading it all the more enlightening, and the source of a lot of exciting discussion. I have always admired Breyer's moderate, pragmatic decision-making and read this book mostly to see how he constructed this approach. It's a really good synthesis of the history and opinion that gives a lot of insight into Breyer's opinions, and will shed some light on Breyer's hermeneutic decisions even for those familiar with the case law.
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