Justice Breyer Pretends To Be An Originalist To the Foreign Press

June 6th, 2012

“George Washington knew about commerce between the states, he did not know about the Internet,” Breyer told AFP in an exclusive interview, as he looked back on his 18 years serving as one of nine judges on the nation’s top bench.

“But we have to apply the values that underlie free speech to a world with the Internet, to a world with television.

“The difficulty of a constitutional judge’s task is to work out how these values, embodied in words in the document (the Constitution), these values that do not change, how do they apply to circumstances that continuously change?

“And that kind of problem comes up all the time,” said this pragmatic judge, counted among the more liberal, progressive members of the bench.

George Washington’s views on commerce are unlikely helpful to any originalist. His role in in the constitutional convention was ministerial, at best. He said nothing on point. Though we also know that Breyer has considered the views of other non-framers like John Adams. Though I guess Breyer wanted to pick a founding father that the French may be familiar. Lafayette and Washington were BFFs.

Though, even Breyer concedes history is not too useful (unless it supports his view of the Second Amendment):

“Why do other people want to say, ‘Do everything via history?’ I say, that won’t work… If you want just history, let’s hire nine historians. Let’s not hire nine judges.”

Interestingly, Breyer says he writes his dissents to convince the other Justices:

“I’m always writing a dissent not for you, and not for the public. My audience is always the other judges. And they will read it. And I’m hoping that there’ll be some changes. And sometimes there are, you see — more than you think. And then the dissent has succeeded.”

Scalia, in contrast, writes them for law students and case books.