STEVE INSKEEP, Host:
Supreme Court Justice Stephen Breyer often spars with Justice Antonin Scalia in the printed pages of legal opinions. Scalia is the leading proponent of the idea that the framers of the Constitution meant what they said and no more, and that the provisions of the Constitution are limited to what they covered back in 1789. The end.
O: A Judge's View" - a different view that Scalia. In his first interview, he talks with NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: Breyer's book, a combination of history and legal philosophy, argues that there are no easy color-by-the numbers answers to many legal questions, and that to suggest there are is an illusion. To understand what Breyer is rebutting, just listen to Justice Antonin Scalia.
ANTONIN SCALIA: The Constitution that I interpret and apply is not living, but dead.
TOTENBERG: Scalia contends the Constitution is not flexible and its meaning cannot change over time. To allow the Constitution's meaning to morph over time, he contends, just allows judges to say it means whatever they want it to say. Not so, says Breyer.
STEPHEN BREYER: People think we decide things politically, or at least if we don't decide things politically, we're deciding on whatever we think is good in some general way; or that the only way to protect against subjective views of judges is to have something called originalism, which is as if you could reach decisions by means of an historical computer. I don't think any of those things are true.
TOTENBERG: Breyer argues that the founders did want a living Constitution; they wrote a Constitution they wanted to last for the ages.
BREYER: And they understood, perfectly well, that conditions would change. The values don't change; the circumstances do. Many of the decisions we make in the Supreme Court are inevitably on open matters. What does that word liberty in the 14th amendment mean? What does due process of law mean? Cruel and unusual punishment - that's what the constitution forbids. Flogging as a punishment might have been fine in the 18th century. That doesn't mean that it would be OK, and not cruel and unusual today.
TOTENBERG: And what about the first amendment freedom of speech? There was no Internet in 1789, no radio or TV. You can't, he argues, simply freeze the Constitution with the dead hand of the 18th century. What's more, he says, historians don't agree on what the founders meant at the time they wrote the constitution.
BREYER: History is very often in these matters, a blank slate or a confused slate, and if you want to govern the country by means of that history, then you better select nine historians and not nine judges to be on the court. And I'll tell you; those nine historians will very often disagree with each other.
TOTENBERG: The job of the Supreme Court, says Breyer, is to apply the Constitution's values to modern circumstances, using the tools of judging - precedent, text, and an assessment of the purpose of the constitutional provision at issue.
BREYER: What we're doing with the Constitution is - you can think of this document laying down certain frontiers or borders, and we're the border patrol. Life on the border is sometimes tough. And whether a particular matter - abortion or gerrymandering, or some other matter, whether school prayer - whether that's inside the boundary and permitted or outside the boundary and forbidden, is often a very, very difficult and close question.
TOTENBERG: As an illustration of the difficulties, Breyer points to the question of Congressional term limits enacted in some states in the early 1990s - a question the court decided in a case from Arkansas. The Constitution says that to be a member of Congress, you have to be 25 years old, a citizen of the United Sates, a resident of the state from which you're elected. That's all it says. So, can a state add to that list of qualifications by imposing term limits?
BREYER: The text doesn't tell you. Go look at the history. What you'll discover: Jefferson and Story thought one thing at the time; Madison thought something else. Go look at the precedent - some cases over here, the other cases over there.
TOTENBERG: Ultimately, a five-justice court majority concluded that the list was exclusive.
BREYER: Five people thought it's a federal institution, we better say no additional requirements; that's what this phrase means. A minority of four thought no, it's more important that states control what their own representation will be like.
TOTENBERG: Breyer's book has many sections devoted, not to such philosophical arguments, but instead to the drama of the court's history. It's what he calls the Mary Poppins approach.
BREYER: A little bit of sugar helps the medicine go down.
TOTENBERG: The history chapters cover some of the court's most famous and infamous decisions - the Dred Scott case, which upheld the constitutionality of slavery; the Little Rock school desegregation case, in which the court's desegregation orders were enforced by federal troops; and the court's 1944 decision upholding the internment in barb wired camps of individuals of Japanese descent living on the west coast - 120,000 people, 70,000 of whom, were U.S. citizens.
Breyer notes that the court and the government knew by the time the case was decided in 1944 that the justification for the internment was wrong, that there had been no secret Japanese-American saboteurs. So, why did the court ratify the internment decision made by President Roosevelt?
BREYER: I think the reason was, they thought we can't run the war - and the choice is we run the war or Roosevelt runs the war. And we think he can and we know we can't and therefore we'll uphold what he does.
TOTENBERG: A decision that imposed no limits on the president came to be regarded as so wrong that Congress formally apologized for the internment and paid reparations in 1988. The lesson, as Breyer sees it, was reflected in the court's decision when President George W. Bush, acting on his own authority, set up a detention camp at Guantanamo, and the court ruled that the detentions were subject to U.S. Court review.
BREYER: Guantanamo, in my own mind, represents an effort by the Court to say there are some limits.
TOTENBERG: Such decisions are often controversial. But Breyer argues, it is important for the public to understand the value of an independent judiciary which may sometimes, in his words, decide things the public doesn't like one little bit.
Pointing to Bush versus Gore, the Supreme Court ruling that decided the 2000 presidential election, Breyer notes that he was in dissent, on the losing side of the five-to-four decision.
BREYER: I thought it was wrong. A court will sometimes be wrong, but it's more important to have a nation that tries to resolve its differences, important ones, under law, rather than have people resorting to violent alternatives.
TOTENBERG: Breyer finds himself in dissent more and more, these days, on a court that is dominated by a new brand of conservative. But he is undaunted.
BREYER: I would prefer that I was not in dissent quite so often, but it's a big country. And it's not such a terrible thing to have people on the Supreme Court who think very different things. And when I'm in dissent and I get discouraged, so what? I mean, I've written down what I thought and every case is a new day.
TOTENBERG: Justice Stephen Breyer. His book goes on sale tomorrow.
Nina Totenberg, NPR News, Washington.
INSKEEP: And you can read an excerpt from Justice Breyer's book at NPR.org.
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