In 1819, United States Supreme Court Chief Justice John Marshall offered a framework for understanding the U.S. Constitution and its role in our nation. Decrying the “baneful influence of … narrow construction” in his landmark opinion in McCulloch v. Maryland, Marshall interpreted the Constitution’s “necessary and proper” clause to confer on Congress the power to adopt measures in pursuit of the general welfare (such as the creation of a national bank) even when the text of the document does not explicitly authorize such measures.
“Let the end be legitimate,” Marshall wrote for the majority, “let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.”
Down to the present day, McCulloch is emblematic of a pragmatic approach to constitutional interpretation.
And it is a perspective that lives on in one of its leading modern proponents, Stephen Breyer ’64, who served as an associate justice of the Supreme Court for 28 years, retiring in 2022. Now Breyer is the Byrne Professor of Administrative Law and Process at Harvard Law School, where he previously taught law from 1967 to 1980, and his latest book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” offers a comprehensive argument for a version of the approach to judging articulated by Marshall in McCulloch.
It is also a sustained, yet unfailingly civil, assault on pragmatism’s modern-day jurisprudential nemeses, constitutional originalism and its cousin, statutory textualism. By basing much of his critique on Marshall — whose words and decisions he cites more than those of any other justice except Antonin Scalia ’60 — Breyer takes an ironically originalist approach to his attempts to dethrone the relatively new but increasingly ascendent method of legal interpretation which, itself, aims to divine meanings from historical records (such as they are) as to how the Constitution was understood by those who have framed it.
“Law is tied to life, and a failure to understand how a statute is so tied can undermine the human activity that the law seeks to benefit.”
Reading Breyer’s prose can feel like sitting in a law school class with a profoundly knowledgeable, deeply humane, and perfectly patient teacher guiding students through a plethora of precedents, each chosen to make a particular point. The solo author of seven books, Breyer is as quick to quote baseball legend Yogi Berra as he is a French philosopher like Montaigne, not to mention justices and judicial opinions he admires from across the Supreme Court’s 234-year history. And he is fond of a quote by the late Harvard Law Professor Paul Freund ’31 S.J.D. ’32 in which the constitutional scholar asserted that the Court “should never be influenced by the weather of the day but inevitably … will be influenced by the climate of the era.”
Like Caesar’s Gaul, the 263-page text is roughly divided into three parts. The introductory chapters outline Breyer’s preferred path of purpose-oriented judging (sometimes dubbed “purposivism,” a label that Breyer conceded in a recent interview with the Bulletin is “awkward to say” but also “captures the idea”). The account of purposivism is developed in contrast to the originalist and textualist approaches favored by his former Court colleague Scalia and the late justice’s growing assemblage of acolytes. Breyer then delves deep into how these two competing judicial philosophies manifest their relative merits and deficiencies in the related, but distinct, realms of statutory and constitutional interpretation.
In the process, Breyer takes on such troublesome topics — at least for legal scholars — as stare decisis, the nondelegation theory, the major questions doctrine, and Chevron deference. He also outlines his disagreements with the Court’s majority in a recent string of highly divisive decisions, including cases touching on the Second Amendment, abortion, and the environment.
Statutory Interpretation: “Tell me why”
According to Breyer, pragmatic or purpose-oriented judges “will first and foremost put considerable weight upon the purposes that a statutory phrase seeks to achieve” based in part on what “a reasonable legislator” would have thought at the time. They will also consider the consequences of their decision, including whether it will upend long-understood precedent and practice. After all, he writes, “law is tied to life, and a failure to understand how a statute is so tied can undermine the human activity that the law seeks to benefit.”
Breyer believes this approach holds significant advantages over textualism. “For one thing, we live in a constitutional democracy,” he writes. “We elect legislators. And those legislators will normally try to achieve the objectives that those who elected them desire. When a court interprets statutory language in a way that is consistent with its basic objectives, that court is more likely to implement what the legislator believes his or her constituents desire, which is a worthy goal in a constitutional democracy.”
This, he argues, will enable citizens to more accurately judge whether their elected representatives have advanced the popular will. An added benefit, he believes, is that the “statute will likely work better for those whom it affects. After all, that is the crux of the legislator’s purpose.”
Breyer and like-minded judges use a series of tools to discern legislative purpose when interpreting unclear laws. While they always begin by examining the text — “If the text says fish, that doesn’t mean chicken,” he quipped — they also avail themselves of other sources, including legislative history.
The key question, Breyer believes, is: “Why?” Why did Congress pass this law, what did legislators hope to achieve, and how does the language they adopted advance that goal in purpose and outcome?
This is not a new approach to the law, he notes, nor was it invented by the Marshall Court. Breyer cites a host of historical authorities, from the medieval theologian Thomas Aquinas to the famous English jurist Sir William Blackstone, as well as a long list of his renowned predecessors on the Court, including Louis Brandeis LL.B. 1877 and Oliver Wendell Holmes Jr. LL.B. 1866, as having supported this view.
Breyer argues that textualists, by looking almost exclusively to the language of a given law, make a handful of “important promises,” none of which, he believes, they can reasonably expect to keep.
“First,” he writes, “the textualist believes that, comparatively speaking, textualism will suggest that there is a single right answer to interpretative problems.” Second, textualism claims to eliminate the likelihood that judges will impose their own biases. Third, adherents maintain that “sticking to the text will help the legislator as well as the judge,” by making plain how courts will interpret legislative language. The final pledge, he explains, is that “the textualist system is a fairer system,” one that is easier to understand and more equitably administered.
So, what’s the problem, according to Breyer? Among many other concerns, “I have found the legal world too complex, too different from the world the textualist assumes, to believe that the theoretical virtues the textualists mention can justify the textualist approach,” he writes. His skepticism, particularly about the aid textualism will lend legislators, comes from his years working on Capitol Hill as a top aide to U.S. Sen. Ted Kennedy, where he witnessed at close quarters the legal sausage being made, a process that 19th-century Prussian Chancellor Otto von Bismarck found so unappetizing that he famously urged lovers of law or liverwurst to avert their gaze.
Constitutional Interpretation: Enter originalism
Another highlight of Marshall’s opinion in McCulloch, Breyer writes, was its commitment to the idea that the Constitution must remain a workable guide “for ages to come, and consequently, … be adapted to the various crises of human affairs,” words that he notes are today enshrined on the lower Great Hall of the Supreme Court Building. Breyer explains that Thomas Jefferson and his successor as president, James Madison — often hailed as the “father of the Constitution” — tended to agree with Marshall’s statement, despite otherwise being two of the chief justice’s most fearsome political foes. Even Chief Justice William Rehnquist, no faint-hearted liberal, referred to the Constitution as a “workable governing charter,” notes Breyer, who served with him for more than a decade.
Breyer argues that textualists, by limiting themselves to the language of a law, make “important promises” they can’t expect to keep.
Originalism — which Breyer defines as “a form of textualism that … consists of the principle or belief that a text should be interpreted in a way consistent with how it would have been understood or was intended to be understood at the time it was written” — has recently eclipsed more traditional techniques of interpretation.
Breyer guides readers through a series of recent cases decided on originalist grounds, beginning with the 2022 decision in New York State Rifle & Pistol Association Inc. v. Bruen. In that case, the Court was asked to decide whether the Second Amendment guarantees the right of individuals to carry handguns outside their homes (the Court had ruled in favor of in-home possession in 2008). In a 6-3 decision from which Breyer dissented, the Court held that it does.
Breyer believes Bruen and other recent rulings reveal at least three major flaws in the originalist approach. First, he writes, “too often originalism is impractical, because judges are not historians,” noting that many professional historians have declared that the Court’s majority opinion misstates the historical record on which their ruling in Bruen rests. Another problem, he believes, is that originalism’s intentional blindness to the consequences of judicial judgments “threatens the workability of our constitutional system and impinges on the ability of democratic legislatures to create modern solutions to modern problems.”
Finally, citing the Court’s decision in Dobbs v. Jackson Women’s Health Organization to unravel a half century of precedent stemming from Roe v. Wade, Breyer highlights the fact that depending on the original intent of the limited number of individuals who had a political voice in pre-modern America excludes from consideration the needs and views of much of the population, both then and now. The so-called “people,” writ large, he and Justices Elena Kagan ’86 and Sonia Sotomayor have emphasized, “did not ratify the original Constitution in 1788 or the Fourteenth Amendment in 1868. White men did.”
Abandon stare decisis? “That way lies chaos.”
Breyer saves some of his harshest criticisms (harsh by his standards) for a chapter titled “Legal Stability: Stare Decisis,” which explores threats to the longstanding principle that courts should in most cases follow existing precedents. As he said, “stare decisis means that you only rarely — sometimes, but rarely — overturn a preceding case. But if you do that very often, the law will become unstable.” While the Court has rightly overturned some precedents, he says — with Brown v. Board of Education’s overruling of Plessy v. Ferguson’s “separate but equal” regime being the oft-cited example — such instances are, to Breyer, the rare and exotic specimens that serve to confirm the condition and desirability of legal homeostasis.
To Breyer, “stare decisis does not exist simply to protect precedent that is right; it keeps the law stable by preventing the continuous reexamination of precedent that may well be wrong.” He adds, “The fact that judges think an earlier case was incorrectly decided cannot be, and never has been, a strong basis, by itself anyway, for overruling an earlier case.”
In time, consistently ignoring that principle, as the Court has been accused of doing recently in several high-profile cases, would, Breyer believes, involve picking and choosing precedents to overturn for “purely subjective” reasons and would undermine the rule and stability of the law. “[I]f the only basis for overruling an earlier case is that an originalist judge, applying originalism to the earlier case, concludes that it was wrongly decided, then many, many earlier cases will be candidates for overruling (at least in the mind of that judge),” he writes.
“That way lies chaos,” he concludes.
The Future of Pragmatism: “I’m not dead!”
During a scene in the 1975 comedy “Monty Python and the Holy Grail,” a rickety cart piled with possible plague victims trundles through a miserable medieval village, followed by a man clanging a cowbell and calling out, “Bring out your dead!” As a villager attempts to hand over a seemingly lifeless body he’d slung over his shoulder, the exchange is interrupted when the supposed corpse exclaims, “I’m not dead!” An argument then ensues among the three men about the degree to which the reluctant death-wagon passenger is, or is not, beyond saving.
In many ways, it feels much like the debate that has been unfolding among members of the Supreme Court since at least 1986, when originalism’s fiercest advocate, Justice Scalia, first took his seat on the nation’s highest bench. The question today, as with Monty Python’s reluctant corpse-to-be, or even Mark Twain when he reportedly stumbled upon his premature obituary in 1897, is whether reports of purpose-oriented judging’s death are greatly exaggerated, as Breyer hopes.
In his final chapters, Breyer ponders whether we are living through the latest of several major methodological paradigm shifts on the Court since the dawn of the 20th century. The first, he says, came in a 1905 case called Lochner v. New York, which inaugurated and gave its name to an era of favored laissez-faire treatment of business and its priorities. The next arrived with the Great Depression, when the Court adopted a new approach, often termed “judicial restraint.”
The most recent turn was instigated by Chief Justice Earl Warren, under whose leadership in the late 1950s and 1960s the justices arguably abandoned judicial restraint and adopted a philosophy focused on protecting human rights and “equal dignity before the law.” The Warren Court ushered in a series of landmark decisions that banned forms of racial segregation (Brown and Loving v. Virginia), guaranteed criminal defendants’ rights (Miranda v. Arizona and Gideon v. Wainwright), expanded free speech protections (New York Times Co. v. Sullivan), and gave constitutional protection to certain reproductive rights (Griswold v. Connecticut), among many others.
Breyer said that he views the rise of textualism and originalism as a reaction to this last turning point in judicial methodology. “People thought, Well, they’ve gone too far and they’re just doing whatever they want.” While the reaction is understandable and was perhaps predictable, Breyer fears the pendulum is swinging too far back in the other direction.
“The novel part of it, I think, is to say we’re only going to look at the text,” he added. To him, it is impossible to rely exclusively on the text “and also have laws that reflect what Congress is trying to do … to better the condition of this group of people or that group of people or … in the Constitution to maintain certain values: democracy, human rights, equality, rule of law, separation of powers, and [ensuring] no one becomes too powerful.”
Breyer believes his pragmatic approach is both true to the founders’ wishes and best adapted to ensuring a workable system of government. “It’s an effort to maintain those basic values … as Marshall wanted done, and also to see that the law works well. I don’t think textualism and originalism are very good at that. And I fear that they could lead us in the wrong direction,” he said.
But alongside fear, Breyer, ever the optimist, harbors hope. While conceding that evidence of a historic inflection point is growing, particularly in such decisions as Dobbs, he also cites recent rulings made on grounds other than textualism or originalism, including Allen v. Milligan, an Alabama voting rights case in which the justices relied on “elements of legislative history and purpose, and not simply textualist or linguistic factors,” to decide that the state’s newly redrawn congressional map discriminated against Black voters.
Time, Breyer believes, is on his side. Learning how to be a justice takes years, he writes. And he suspects that several of his former Court colleagues may, over time, come to see the idea of upholding the rule of law, and the public’s resulting confidence in it, as more animating than rigid adherence to textualism or originalism.
Breyer’s new book, it seems, might be an effort to tip the odds that his prediction will come true in his favor. “I’ve been a judge for 40 years — 28 on the Supreme Court [and] about 14 on the court of appeals,” he said. “It’s been my job. And over time, … whether you’re an engineer, or a doctor, or a salesman, or whatever you are, you’ve learned something, … you have approaches, you think this is a better way of doing it, this is not such a good way of doing it. And so, I thought I would try to sit down and just try to write out what I felt I’ve learned over the years, so that other people could read it, we hope, maybe benefit, or maybe not — that’s up to them.”