Reading the Constitution

In Reading the Constitution, recently retired Supreme Court Justice Stephen Breyer takes on textualism, the judicial philosophy that now dominates the Court and is favored by its current supermajority. He sets out why he thinks it is flawed and argues for a better way to interpret the Constitution.

Textualists hold that the Constitution and statutes should be read closely, with their words understood as they were at the time the documents were written. Breyer rejects this approach, and he points out that it is a relatively new one, not the traditional method of constitutional interpretation since the days of Chief Justice John Marshall. He recalls Marshall's insistence that the Constitution must remain a workable set of principles that later generations can interpret.

For Breyer, the most important thing in interpreting law is to understand the purposes of statutes and the consequences of deciding a case one way or another. He illustrates these ideas through some of the most significant cases in the nation's history, including the 2022 Dobbs and Bruen decisions, which he argues were wrongly decided and have had harmful results.