Legal News

Scalia and Breyer Go At It Once Again

By Ashby Jones

How is the U.S. constitution meant to be read by the judges who interpret it? As it was written and ratified back in the 1780s? Or are its words and phrases meant to change along with a society’s customs, mores and viewpoints?

It’s a debate that’s roiled the justices on the U.S. Supreme Court for years; a divide currently embodied in Justices Antonin Scalia and Justice Stephen Breyer (pictured). Scalia’s an unapologetic “originalist,” while Breyer, author of a book called Active Liberty, tends to push for a more expansive reading of the Great Document.

On Tuesday, the duo talked about their interpretive differences down at the U.S. Supreme Court. In the words of this AP story, they “tried to explain why their differing views of judging so often lead them to opposite conclusions when the topic is abortion, the death penalty, gay rights or physician-assisted suicide.” Click here for the National Law Journal story, as well.

So what did they come up with? Well, mostly, from the sound of it, some good-natured ribbing. We love this exchange:

“I never heard that before and I certainly don’t agree with it,” Scalia said in response to one point from Breyer, according to the AP.

“If I did make an argument you hadn’t thought of before, I wish you’d think about it,” Breyer replied a few minutes later.

Breyer said his view of the Constitution allows the court “to better carry out that initial intent that this document will in fact govern a changing society as society changes over the course of centuries.”

Scalia, as he’s articulated many many times before, finds that whole notion, well, silly. (Or at least we doubt Scalia would disagree with that characterization.)

“I know a whole bunch of rights that have been found in the Constitution that the people never voted for,” he said. “That’s what’s happened through the device of looking at the purpose of the provisions and saying we have to keep the Constitution up to date.”

Full post as published by Law Blog - WSJ.com on March 24, 2010 (boomark / email).