Confessions of a Judicial Tyrant
by
Larry Pratt

Supreme Court Justice Stephen Breyer made some comments in a speech to the New York University School of Law in October of this year. He did not make it any easier to avoid being in contempt of court.

Mr. Justice Breyer said: “Those more literalist judges who emphasize language, history, tradition and precedent cannot justify their practices by claiming that is what the framers wanted. For the framers did not say specifically what factors judges should emphasize when seeking to interpret the Constitution’s open language.”

Therefore, in Breyer’s opinion, judges should be wary of enforcing a strict reading of the Constitution.

Well, let’s see how hard it is to figure out what the framers had in mind. First of all, in Article 5 of the Constitution they made it clear that the same Constitution is to be changed only by means of amendment.

They must have thought it not too difficult to understand the Constitution because they made it clear that other means of changing it are unacceptable. One of the founding fathers, Samuel Adams, put it this way in a speech before the Massachusetts legislature in January, 1796:

    The people alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it. And the federal Constitution, according to the mode prescribed therein, has already undergone such amendments in several parts of it as from experience has been judged necessary.

George Washington, in a 1796 speech, also warned Americans to adhere strictly to this manner of changing the meaning of the Constitution:

    If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpations; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.

In a June, 1824 letter to Henry Lee, Thomas Jefferson gave some guidance for Constitutional interpretation:

    I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone, it is the legitimate Constitution…. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.

If Justice Breyer cannot figure out what the Constitution means by use of language and history, then he should step down and have the Congress send to the Court a Justice who can understand the Constitution.

Part of Mr. Breyer’s problem is that for some time, the study of Constitutional law in law school has not required the study of the Constitution itself, nor analyses of its language nor study of the history of the times around the drawing up of the Constitution.

In that same speech, Breyer indicated that he has found a principal of interpretation of the Constitution; namely, public opinion polls.

He indicated that due to the rise in the public’s trust of the federal government following the September 11, 2001 terrorist attacks, the court should reassess its recent decisions favoring state sovereignty over federal power.

Legal today, illegal tomorrow. Hey, just go with the flow!

Better sleep with one eye open. There are a lot of judges who think the way Justice Stephen Breyer does. May God have mercy.