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FIRST-PERSON: Originalism vs. modernism

ALEXANDRIA, La. (BP)–According to an Associated Press report, it seems that U.S. Supreme Court Justice Stephen Breyer frequently makes decisions about the constitutionality of a law based on criteria that is subjective and speculative.

“I tend to emphasize purpose and consequences,” Breyer said Feb. 6 during a speech given at the University of Chicago Law School. “Others emphasize language and a more literal reading of the text, history and tradition -– believing that those help you reach a more objective answer.”

Appointed to the high court in 1994 by President Clinton, Breyer used two 2005 decisions that involved the Ten Commandments to help illustrate his judicial philosophy.

Breyer said he decided a Ten Commandments display in two Kentucky courthouses was unconstitutional because he believed they would lead to religious conflict, AP said. But he found that removing a Ten Commandments display that had been on the grounds of the Texas State Capital since the early 1960s would not cause conflict; thus, he ruled it constitutional.

Nowhere in the speech did Breyer indicate how he came to his conclusions regarding the possible consequences of the Kentucky or Texas cases. Neither did the justice offer any insight into the process he utilizes in determining the purpose or possible outcomes of certain laws.

Using Breyer’s method of judicial reasoning, one could conclude that he chose not to divulge the details of his “process” because to do so would show the utter subjectivity of the decisions. And further, the consequences of doing so could result in renewed ridicule and criticism of said decisions.

One insight that can be gleaned from Breyer’s address is that there are two clear and distinct views when it comes to applying the Constitution to our current situation.

One view, as Breyer mentioned, focuses on the original meaning of the words used in the Constitution. Known as originalism or constructionism, this philosophy also considers the context in which the Constitution was drafted as well as decisions rendered by previous originalists/constructionists jurists.

Originalism/contructionism views the Constitution as an anchor to which the United States government and society are securely tethered. Hence, it was designed to not only withstand, but also to protect against, the fickle winds of cultural trends.

Those that hold the view of Justice Breyer are known as modernists or instrumentalists. They believe the Constitution is a living document that matures and develops along with society. Modernists/instrumentalists interpret the Constitution as if it were being ratified today.

In the modernist/instrumentalist view, the Constitution meant one thing in 1882, but it means something very different in 2006.

Rather than an anchor that holds our nation secure, in the philosophy of the modernist/instrumentalist, the Constitution is nothing more than an inflatable swimming pool float that is blown about by the changing winds of culture.

The results of the subjective, speculative jurisprudence practiced by justices like Breyer are schizophrenic decisions like the ones handed down in the Ten Commandment cases in Kentucky and Texas.

Originalists/constructionists believe the framers of the U.S. Constitution wrote down what they meant and they meant what they wrote.

According to originalists/constructionists, the framers understood that culture would change and society would shift. That is precisely why they included a provision that would enable the Constitution to be amended when deemed necessary. This procedure for change is articulated in Article V of the Constitution.

When a justice like Breyer is contemplating a particular case, he or she subjectively ponders what the authors of the Constitution might have written about a specific practice if they were alive today. They somehow believe they can actually read the minds of men who have been dead for almost two centuries.

Further, those who share Breyer’s philosophy also attempt to predict the possible consequences of a particular law. Whether or not a practice is addressed in the Constitution is irrelevant. However, speculation on the possible outcome of a certain statute is germane.

So, by some sort of judicial divination, justices like Breyer act based on what they believe the authors of the Constitution might possibly think today and what could possibly occur if a law is struck down or upheld.

It seems that those who share Breyer’s philosophy place more faith in their subjective ability to read the minds of dead people and speculations about the future than they do in the actual time-tested Constitution of the United States.
Boggs is editor of the Baptist Message newspaper in Louisiana.

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  • Kelly Boggs