Wednesday, March 24, 2010

Scalia v. Breyer

Justices Scalia and Breyer added to their on-going interpretation debate at the Supreme Court Historical Society yesterday, where they spoke on "Original Intent and the Living Constitution."

Justice Scalia said he ties his constitutional interpretation "to the people during the founding, not the framers.  It’s not about original intent but original meaning. I do so because it depends on consent, which is what people agree to on adoption."

Justice Breyer said the constitution "was intended to create a workable government, and our job is to apply its words to circumstances.  In any difficult case, we (1) look at the words of the text, (2) look at the history, (3) look at traditions behind it, (4) check the precedents, (5) the values behind it, and the (6) consequences through the value lens. Scalia is more comfortable with 1-4 while I am happier with 5 and 6.  I feel that it does a better job."

These excerpts are taken from the rough transcript posted at Josh Blackman's Blog.  Check it out for more nuggets