Maximilian Pakaluk, associate editor at NRO, examines a recent panel discussion given by the New York Historical Society, which included Supreme Court Justice Stephen Breyer, Akhil Reed Amar, Southmayd Professor of Law and Political Science at Yale University, and Benno C. Schmidt Jr., chairman of the Edison Schools and former dean of Columbia Law School. The discussion was entitled “We the People: Active Liberty and the American Constitution.”

Pakaluk observes, “The three speakers, but especially Schmidt and Breyer, agreed that the Constitution is terribly hard to figure out. From the way they spoke of it, you would think it had been written by a group of postmodern philosophers. Who knew that a document of less than 5,000 words, filled mostly with seemingly dry regulations and instructions, could be so perplexing?”

He continues, “Breyer had a metaphor to describe what goes into interpreting the Constitution: It’s a matter of ‘patrolling the boundaries’ of ‘democratic space.’ This sounded like a complicated affair, but the judge graciously shared his secrets. There are, according to Breyer, six ‘tools’ to be used in understanding the Constitution: text, history, tradition, precedent, purpose, and consequences.”

Of those six tools, “Breyer finds it ‘more enlightening’ to dwell mostly on the last two. His explanation of this approach was somewhat unsettling: It involved looking at the ‘values’ expressed in the Constitution, and then figuring out what their consequences are for today.”

When Dutch theologian Herman Witsius (1636-1708) wrote his The Economy of the Covenants Between God and Man in 1693, he described some of his own principles of textual interpretation. These were in part based on preceding examples of the applcation and understanding of government documents from classical sources.

In the very first article of his text, Witsius writes,

Whoever attempts to discourse on the subject and design of the Divine Covenants, by which eternal salvation is adjudged to man, on certain conditions equally worthy of God and the rational creature, ought, above all things, to have a sacred and inviolable regard to the heavenly oracles, and neither through prejudice nor passion, intermix any thing which he is not firmly persuaded is contained in the records which hold forth these covenants to the world. For, if Zaleucus made it a condition to be observed by the contentious interpreters of his laws, that “each party should explain the meaning of the lawgiver, in the assembly of the thousand, with halters about their necks: and that what party soever should appear to wrest the sense of the law, should, in the presence of the thousand, end their lives by the halter they wore:” as Polybius, a very grave author, relates in his history, Book xii. c. 7. and if the Jews and Samaritans in Egypt, each disputing about their temple, were admitted to plead before the king and his courtiers on this condition only, that “the advocates of either party, foiled in the dispute, should be punished with death,” according to Josephus, in his Antiquities, Book xiii. c. 6. certainly he must be in greater peril, and liable to sorer destruction, who shall dare to pervert, by rashly wresting the sacred mysteries of the Divine Covenants…

We can see that Witsius argues here that if there were such consequences and restrictions on the interpretations of secular laws, how much more there should be in the interpretation of the sacred texts of Scripture. We can also see that the dominant image for legal interpretation is that of “halters about their necks.” This classical image seems to be rather radically oppposed to Justice Breyer’s (post-modern?) notion of “patrolling the boundaries…of democratic space.”

  • David Michael Phelps

    I think it would be a wothwhile exercise to look at Breyer’s own “values” expressed in his decisions and their consequences for the future of the constitution. It seems to be that if this is going to be a (the?) dominant mode of interpretation of the Constitution, the document does not have much of a future–perhaps ‘the mood the framers were in’ is a more enduring foundation for liberty. Yes, that’s it–let’s base our decisions for the future of our country on the digestion of a few men in the 18th century.