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On the Court, Leftist Justice vs. the Rule of Law

Breyer's "living Constitution" is a dead letter.

by
Mike McDaniel

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December 14, 2010 - 12:00 am
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”Elections have consequences,” said Barack Obama upon becoming president. Among those consequences is the ability of any president to appoint justices of the Supreme Court, as well as a great many other federal judges, based on criteria rational or irrational, honorable or dishonorable, or no criteria other than flipping a coin or tossing a dart at a board festooned with the names of candidates.

On Dec. 12, the consequences of the election of Mr. Obama were illuminated in stark relief on Fox News Sunday during Chris Wallace’s interview of Supreme Court Justice Stephen Breyer, currently hawking his book Making Our Democracy Work. Wallace wisely questioned Justice Breyer on the Second Amendment. His answers and evasions were illuminating — and frightening.

Justice Breyer suggested that the primary job of a Supreme Court justice is to determine the values of the Founding Fathers. Breyer suggested that his second concern was to examine history, with the majority opinion of historians, perhaps, considered to rule. He did ultimately allow that judges should consider such matters as the the actual text of the Constitution and precedent, but Breyer’s answers to Wallace’s questions revealed his belief that the text and its clear meaning should be ignored in favor of the approach of judges like himself — who should “regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.” Justice Breyer suggested that this was a “pragmatic” approach.

In explicating the text of the Second Amendment, Breyer said that it was not written to guarantee an individual right to keep and bear arms, but as a check on Congress nationalizing state militias. According to Breyer, James Madison included the amendment as an appeasement to the states to ensure that the Constitution was ratified. Breyer asserted that historians believe that Madison’s priority was “I’ve got to get this document ratified.”

Justice Breyer repeatedly brought up “liberty,” suggesting that the concept could not be understood unless one adopted his values-based approach to Constitutional interpretation. He also raised the argument that his approach was correct because the Founders did not foresee such things as the internet, television, and the telephone — implying that his flexible approach (an approach which ignores the text and its clear meaning in favor of adopting contemporary, politically correct interpretations that advance desired social policies) is the only legitimate way for a judge to make decisions.

Justice Breyer wrote the dissenting opinion in the 2008 District of Columbia v. Heller case in which the majority affirmed the Second Amendment right of individuals to keep and bear arms, as the clear meaning of the text and the historical record support. However, Breyer believes that the opposite holding, his own, is correct, reflecting the values and intentions of the Founders. Referring to the act of judging, Breyer said: “The difficult job in open cases where there is no clear answer is to take those values in this document, what all Americans hold, which do not change, and to apply them to a world that is ever changing.  It’s not a matter of policy, it is a matter of what those framers intended.” Breyer ignores the fact that it is language, the written word, that reflects, embodies, and explains values, and nowhere was language so carefully chosen as in the Constitution.  In Breyer’s construction, the clear language of the Constitution is untrustworthy, confusing, and cannot be understood by the layman, but only apprehended by a values interpretation discovered and imposed by judges.

For Justice Breyer a complete ban on handguns in D.C is completely acceptable and reflective of the true values embodied by the Constitution. “We’re acting as judges. If we’re going to decide everything on the basis of history — by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns? Are you a sportsman? Do you like to shoot pistols at targets? Well get on the subway and go to Maryland. There is no problem, I don’t think, for anyone who really wants to have a gun.”

Because Supreme Court justices almost never consent to interviews, this interview is fascinating for a look at the “living, breathing document” wing of the Supreme Court. Its view of the Constitution is mere subterfuge for the view that the Constitution means whatever a liberal majority of judges want it to mean at a given moment. Because conservative justices generally view the interpretation of the plain text of the Constitution, supported by the historical record, to be the primary determining factor in understanding the intent of the Founders, the view espoused by Justice Breyer is clearly that of the left — a left that views the Constitution not as America’s primary guarantor of liberty and democracy, but as an antiquated impediment to the imposition of their policies.

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