Reading the Constitution

Why I Chose Pragmatism, not Textualism

By: Stephen Breyer

Narrated by: Stephen Breyer

New York Times Bestseller

In a provocative and brilliant analysis, retired Supreme Court Justice Stephen Breyer deconstructs the textualist philosophy of the current Supreme Court’s supermajority and makes the case for a more pragmatic approach of 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 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 Supreme Court cases in the nation’s history, among them the Dobbs and Bruen decisions from 2022 that he argues were wrongly decided and have led to harmful results.

My Opinion

I enjoyed this book because it gave me food for thought in 2024 when Democracy is being challenged and rights being removed from Americans.

Judicial “Make up your own reasoning” after the fact.

Justice Breyer assumes good intent, amongst his fellow justices. After listening to this audiobook, however, I could not help but exclaim at many different points – “judges, like everyone else, decide what they are going to do and come up with the reasoning afterwards. An “originalist” will find him or herself on the opposite side of the argument if it simply suits their preferences. I assume no such good will and it is folly to suggest something different.

Essential reading for everyone interested in democracy and the Constitution

Justice Breyer explains his methodlogy for deciding cases before the Supreme Court, a methodology that uses many sources to arrive at a decision and he rejects the reliance on or use of textualism or originalism alone to decide cases. He uses examples to explain the problems that reliance solely on the text of a statute or constitutional provision, or on what is thought to be the “orignal” meaning of the words. His methods are focused on assuring that the Constitution works today and in the future - it was designed to last through the ages. He is a wonderful reader, and this book is easily understandable by lay readers.

An eloquent argument

Justice Breyer develops an eloquent argument in support of a pragmatic approach to justice and against textualism. This is an excellent treatise on the subject.

A reflection of current times

This is a monumental book that clearly defines the current times and should be read by every citizen who values the concepts put forward by the Constitution and the founding fathers. It was written so that every American can understand the meaning of the Constitution without being a lawyer or a student of law.