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In reply to the discussion: Scalia Suggests Women Have No Right to Contraception [View all]elleng
(130,905 posts)what's amazing is that people will be surprised.
He considers himself to be an 'originalist,' that is, Constitution means TODAY what Founders thought it meant THEN, 200+ years ago.
Justice Breyer on 'Originalism:'
Breyer readily acknowledges that another reason -- not the main reason -- he wrote the book is to counter the concept of originalism. That's the view espoused most of all by Justice Antonin Scalia that the Constitution is frozen in time, and its original words and meaning hold the answers even to the most modern disputes that the founders could not have imagined.
The approach Breyer advocates to interpreting the Constitution, he hopes, will serve as "an antidote to originalism," which he says "is not, in my view, a workable approach." In the book he attacks the Second Amendment decision in D.C. v. Heller, an originalist high-water mark, for basing its decision on "the facts and circumstances of eighteenth-century society."
Instead, Breyer argues fervently for a "prudent and pragmatic" approach that takes into account other factors, including respect for other branches and institutions of government, as well as a balancing of interests like individual rights and national security. "I'm trying to give legs to that approach, but it's not just a Fourth of July speech. If you follow those principles you will help other institutions, and taking them together you will have the Court producing a workable Constitution." Breyer opens a copy of his book and points to a passage on page 216 that describes this approach to judging, though it adds that the principles "do not provide criteria for the evaluation of all cases."
But can such a shaded, even malleable approach to the law stand up to the muscular appeal of bright lines and simple answers of originalism?
"I don't like bright lines and simple answers," Breyer answers sharply, then pulls back. "It's not that I don't like them, I just think that very often they don't work
We're not sages, we're not seers, we're fallible.
http://www.law.com/jsp/article.jsp?id=1202473052552&slreturn=20120629141501