Post Date: January 20, 2005

Associate Justice Stephen Breyer of the U.S. Supreme Court delivered the 2004 Tanner Lecture on Human Values at Harvard University in November, sponsored by the Edmond J. Safra Foundation Center for Ethics. The following is an edited version of Justice Breyer’s text, which was published in the January 2005 issue of Harvard Law Today. In his remarks, Breyer called on judges to focus more on the Constitution’s goal of an active, participatory democracy, and argued that the “originalist” approach to constitutional interpretation is sometimes at odds with that goal.

Constitution meant to foster ‘active liberty’

The principle of active liberty—the need to make room for democratic decision making—argues for judicial modesty in constitutional decision making, a form of judicial restraint. But there is more to it than that. Increased recognition of the Constitution’s democratic objectives—and an appreciation of the role courts can play in securing those objectives—can help guide judges both as actors in the deliberative process and as substantive interpreters of relevant constitutional and statutory provisions. … [I]ncreased emphasis upon the Constitution’s participatory objectives can help bring about better law. In my experience, most judges approach and decide most cases, including constitutional cases, quite similarly. They are professionals. And their professional training and experience lead them to examine language, history, tradition, precedent, purpose and consequences. … Even where they differ, the degree of difference is often small. Our Court, which normally steps in where other judges disagree, decides close to 40 percent of its cases unanimously. Most of the rest involve only one or two dissenting votes. In only about 20 percent of our caseload do we divide 5-4.

‘Originalists’ warn against interpreting purposes behind texts

Some lawyers, judges and scholars, however, would caution strongly against the reliance upon purposes (particularly abstractly stated purposes) and assessment of consequences. They ask judges to focus primarily upon text, upon the Framers’ original expectations narrowly conceived and upon historical tradition. They do not deny the occasional relevance of consequences or purposes (including such general purposes as democracy), but they believe that judges should use them sparingly in the interpretive endeavor. They ask judges who tend to find interpretive answers in those decision-making elements to rethink the problem to see whether language, history, tradition and precedent, by themselves, will not yield an answer. They fear that, once judges become used to justifying legal conclusions through appeal to real-world consequences, they will too often act subjectively and undemocratically, substituting an elite’s views of good policy for sound law.

This view, which I shall call “textualist” (in respect to statutes) or “originalist” (in respect to the Constitution) or “literalist” (shorthand for both), while logically consistent with emphasizing the Constitution’s democratic objectives, is not hospitable to the kinds of arguments I have advanced. … Why, then, does it not undercut my entire argument?

Why the ‘originalist’ approach is unsatisfactory.

The answer, in my view, lies in the unsatisfactory nature of that interpretive approach. First, the more “originalist” judges cannot appeal to the Framers themselves in support of their interpretive views. The Framers did not say specifically what factors judges should take into account when they interpret statutes or the Constitution. This is obvious in the case of statutes. Why would the Framers have preferred a system of interpretation that relies heavily on linguistic canons to a system that seeks more directly to find the intent of the legislators who enacted the statute?

If, however, justification for the literalists’ interpretive practices cannot be found in the Framers’ intentions, where can it be found—other than in an appeal to consequences, i.e., in an appeal to the presumed beneficial consequences for the law or for the nation that will flow from adopting those practices? And that is just what we find argued. That is to say, literalist arguments often try to show that that approach will have favorable results—for example, that it will deter judges from substituting their own views about what is good for the public for those of Congress or for those embodied in the Constitution. They argue, in other words, that a more literal approach to interpretation will better control judicial subjectivity. Thus, while literalists eschew consideration of consequences case by case, their interpretive rationale is consequentialist in this important sense. Second, I would ask whether it is true that judges who reject literalism necessarily open the door to subjectivity. They do not endorse subjectivity. And under their approach, important safeguards of objectivity remain. For one thing, a judge who emphasizes consequences, no less than any other, is aware of the legal precedents, rules, standards, practices and institutional understanding that a decision will affect.

For another thing, to consider consequences is not to consider simply whether the consequences of a proposed decision are good or bad, in a particular judge’s opinion. Rather, to emphasize consequences is to emphasize consequences related to the particular textual provision at issue. The judge must examine the consequences through the lens of the relevant constitutional value or purpose. The relevant values limit interpretive possibilities. If they are democratic values, they may well counsel modesty or restraint as well. And I believe that when a judge candidly acknowledges that, in addition to text, history and precedent, consequences also guide his decision making, he is more likely to be disciplined in emphasizing, for example, constitutionally relevant consequences rather than allowing his own subjectively held values to be outcome determinative.

Third, “subjectivity” is a two-edged criticism, which the literalist himself cannot escape. The literalist’s tools—language and structure, history and tradition —often fail to provide objective guidance in those truly difficult cases about which I have spoken.

Why do I remind you of the uncertainties, in close cases, of linguistic structure, of canons of interpretation and of history? Because those difficulties mean that the “textualist,” “traditionalist” and “originalist” approaches themselves possess inherently subjective elements. Which linguistic characteristics are determinative? Which canons shall we choose? Which historical account shall we use?

Significantly, an effort to answer these questions can produce a decision that is not only subjective, but which is also unclear, i.e., one that lacks transparency about the factors that the judge considers truly significant. A decision that directly addresses consequences, purposes and values is no more subjective and has the added value of exposing underlying judicial motivations, specifying the points of doubt for all to read. This is particularly important because transparency of rationale permits informed public criticism of opinions; and that criticism, in a democracy, plays an important role in checking abuse of judicial power.

Fourth, I do not believe that textualist or originalist methods of interpretation are more likely to produce clear, workable legal rules. But even were they to do so, the advantages of legal rules can be overstated. Rules must be interpreted and applied. Every student whose class grade is borderline knows that the benefits that rules produce for cases that fall within the heartland are often lost in cases that arise at the boundaries.

Fifth, textualist and originalist doctrines may themselves produce seriously harmful consequences —outweighing whatever risks of subjectivity or uncertainty are inherent in other approaches.

Literalism has a tendency to undermine the Constitution’s efforts to create a framework for democratic government—a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively. Insofar as a more literal interpretive approach undermines this basic objective, it is inconsistent with the most fundamental original intention of the Framers themselves.