March 13, 2006,
Three legal scholars gathered in Manhattan Thursday night to present some of their thoughts on the Constitution. It was part of the New York Historical Society’s “Distinguished Speakers Series.” And distinguished they were. Supreme Court Justice Stephen Breyer was joined by 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, for a discussion entitled “We the People: Active Liberty and the American Constitution.” The theme of the evening was “democracy” at least, that was the theme of Breyer’s comments, and he spoke for most of the time.
Schmidt served as something of a moderator. First he introduced Amar, but the introduction was quickly interrupted by Breyer falling out of his chair. He hadn’t fallen asleep (this wasn’t oral arguments on redistricting, after all). Rather, his chair lost one of its legs, and he tumbled. He wasn’t hurt, and the audience and the speakers were amused. (The whole thing worked out rather well easier, in fact, than beginning with an awkward opening joke.) Fortunately for everyone involved, the New York Historical Society has an abundance of chairs, and the event was allowed to continue.
Amar spoke for about ten minutes, making four brief observations to counter common misconceptions about the Constitution. It was clear he could have continued for a couple hours more, but he restrained himself. He concluded with a question: “What’s your generation going to add to [the Constitution]?” A fitting transition, as the focus shifted to the judge.
Breyer’s eyebrows were lively as Schmidt introduced him, as though he were learning as much about himself as the audience was. It had been revealed earlier that Amar (no youthful-looking man himself) had at one point been Breyer’s clerk. (Amar, Breyer explained, had been only eight at the time.)
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? Not to speak glibly of the Constitution, but as texts go it is written fairly plainly.
Not so, according to Breyer: There is so much more to it than the words. (One did get that sense from the phrases Schmidt was using, like “organic document,” “animating values,” and “look beyond the words.”) In fact, 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.
Whereas Justice Scalia might prefer to stick to the text, and certainly prefers the first four of these 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. Privacy, he said, was the value of the Fourth Amendment, and understanding that amendment was a matter of understanding how privacy should be applied to the present age.
Breyer himself, reflecting on his opening statement, characterized it as a “Fourth of July speech” that is, he added, if he wanted to parody it. But it was in fact much more like a sermon. He described how, at the Supreme Court, he looks down from the bench, across a room filled with all sorts of people, from every race and every religion, and he reflects on how, even though they probably don’t know it, these people are held together by this Constitution. (Although they doubtless have no idea what it says, and, even if they did, they couldn’t possibly know what it means, but that doesn’t really matter anyway, since that’s why we have the Supreme Court.) At the height of this paean to democracy, he loosed the comment, “We are a democracy, and power flows up,” and the audience nearly erupted with shouts of “Amen!”
As it happens, my favorite moment of the night was Breyer’s comment on a Supreme Court decision from before his time I don’t remember which, but it had some bearing on redistricting. He spoke approvingly of it. He likened the critics of the decision to critics of his own take on redistricting they thought it was impracticable, or inappropriate. In response, Breyer invoked the catchphrase of modern moral theory: “The world didn’t come to an end.” This really had nothing much to do with what he was talking about, but it was special to hear these words from him sort of like hearing Socrates himself say, “The unexamined life is not worth living,” mutatis mutandis, of course.
The event, on the whole, was “enlightening” indeed. The emphasis Breyer gave to “values” made his claims to be nothing more than a “practitioner of the law” seem at least slightly disingenuous. If it is a matter of discerning such hidden, ephemeral things, then the job of a judge is vastly different from what we are told about it in civics classes. Certainly the Constitution’s principles can be difficult to apply in individual cases, but when the principles themselves are open to debate that is the work of a philosopher. And if our Supreme Court justices are philosophers, then our Constitution is not an organic document, but a blank slate.
Maximilian Pakaluk is an associate editor at National Review Online.