Welcome to DU!
The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards.
Join the community:
Create a free account
Support DU (and get rid of ads!):
Become a Star Member
Latest Breaking News
General Discussion
The DU Lounge
All Forums
Issue Forums
Culture Forums
Alliance Forums
Region Forums
Support Forums
Help & Search
Justice Breyer’s opinion in the recess appointments case deals a blow to originalism
Active Liberty Lives!Justice Breyers opinion in the recess appointments case deals a blow to originalism.
By Adam Winkler
When a justice is in the minority on the Supreme Court, as Justice Stephen Breyer has long been, there arent many opportunities to write truly landmark opinions. Those are the spoils of the majority, or at least of Anthony Kennedy. Yet Breyer found himself writing for a surprising majority this term in NLRB v. Noel Canning, which held unconstitutional recess appointments made by the president when the Senate was still in pro forma session. While media accounts of the decision understandably emphasized how it was a loss for the president, Breyers opinion is about a far more important and enduring question than the lawfulness of these handful of recess appointments: How should courts interpret the Constitution? As has always been the case, the answer to this deeper question will shape judicial rulings across the spectrum of constitutional law issues, from gay rights and states rights to God and guns.
In his opinion, Breyer offers the most forceful defense of whats often termed living constitutionalism to appear in a majority Supreme Court opinion in a generation. Rejecting Antonin Scalias 18th-century approach of originalismin which all that matters is what the framers thoughtBreyer in Noel Canning stakes a bold claim for interpreting the Constitution in light of its text, purposes, and our whole experience. His is a progressive vision of the Constitution, one articulated previously in his books, like Active Liberty, and in various concurring and dissenting opinions he has authored over the years. But now, in the wake of Canning it is also the opinion of the court. As a result, it will influence how future courtsstate and federal, trial and appellatewill apply the Constitution to answer tomorrows controversies.
It may seem like a niggling academic problem. But it has real-world consequences. Thats one of the reasons Justice Antonin Scaliawho agreed with Breyer that these recess appointments were unconstitutionalnevertheless disagreed with the courts opinion so vigorously. While it may be a sign of how far the Roberts court has shifted that Scalia is forced to file his blustery dissents in the form of angry concurrences, the substance of Scalias complaint is unchanged: The court casts aside the plain, original meaning of the constitutional text. Breyer responds by saying that Scalias originalism asks the wrong question. The question is not: Did the Founders at the time think about the exact issue before the court? The question is: Did the Founders intend to restrict the scope of the Constitution only to the forms ... then prevalent, or did they intend the Constitution to apply, where appropriate, to somewhat changed circumstances? Fidelity to the Constitution, he suggests, means using its timeless principles to address new and unforeseen situations. You know, like figuring out how to preserve privacy in an age of smartphonesas the court did this term in Riley v. California, another case decided without relying on originalism
more
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/07/justice_breyer_s_theory_of_constitutional_interpretation_finally_gets_its.html?
InfoView thread info, including edit history
TrashPut this thread in your Trash Can (My DU » Trash Can)
BookmarkAdd this thread to your Bookmarks (My DU » Bookmarks)
0 replies, 1304 views
ShareGet links to this post and/or share on social media
AlertAlert this post for a rule violation
PowersThere are no powers you can use on this post
EditCannot edit other people's posts
ReplyReply to this post
EditCannot edit other people's posts
Rec (3)
ReplyReply to this post