The Right Coast

February 01, 2006
More on Breyer's New Book
By Mike Rappaport

Larry Solum posts about a review of Stephen Breyer's new book (and Cass Sunstein's new book) by Jim Ryan. I have not read the review yet, but the abstract makes it sound interesting. Here is an excerpt:

And yet the books fall a bit flat, at least in the eyes of this (sympathetic) reader. The basic problem is suggested by the title of this review: neither Justice Breyer nor Professor Sunstein offers and justifies a theory of constitutional interpretation. Justice Breyer comes closer than Professor Sunstein. But in my view, neither Active Liberty nor Radicals in Robes explains and justifies, in terms plain enough to influence public debate, how judges ought to decide cases. In their haste to distance themselves from originalism, moreover, both Justice Breyer and Sunstein seem to distance themselves from the text of the constitution. These seem to me fatal missteps in their effort to persuade a general audience to reject originalism and embrace an alternative. (Emphasis added.)
Of course, the italicized sentence raises an issue that is almost always a problem for nonoriginalist approaches. While sometimes I believe it is possible to distinguish analytically and normatively between text and original meaning (at other times, I don't think so), the values that lead theorists to nonoriginalism also lead them to reject a genuine textualism: they simply don't want to be bound by principles not of their choosing.

For my own very critical review of Breyer's book in Tech Central Station, see here.