Reading the Constitution: Why I Chose Pragmatism, Not Textualism

A provocative, brilliant analysis by recently retired Supreme Court Justice Stephen Breyer that deconstructs the textualist philosophy of the current Supreme Court’s supermajority and makes the case for a better way to interpret the Constitution.

“You will not read a more important legal work this election year.” —Bob Woodward,Washington Post reporter and author of fifteen #1 New York Times bestselling books
“A dissent for the ages.” —The Washington Post
“Breyer’s candor about the state of the court is refreshing and much needed.” —The Boston Globe

The relatively new judicial philosophy of textualism dominates the Supreme Court. Textualists claim that the right way to interpret the Constitution and statutes is to read the text carefully and examine the language as it was understood at the time the documents were written.

This, however, is not Justice Breyer’s philosophy nor has it been the traditional way to interpret the Constitution since the time of Chief Justice John Marshall. Justice Breyer recalls Marshall’s exhortation that the Constitution must be a workable set of principles to be interpreted by subsequent generations.

Most important in interpreting law, says Breyer, is to understand the purposes of statutes as well as the consequences of deciding a case one way or another. He illustrates these principles by examining some of the most important cases in the nation’s history, among them the