for yhtomit ONLY

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Antonin Scalia

Constitutional Interpretation

I am one of a small number of judges, small number of anybody: judges, professors, lawyers; who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I'm not a strict constructionist, despite the introduction. I don't like the term “strict construction.” I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted.

This is such a minority position in modern academia and in modern legal circles that on occasion I'm asked when I've given a talk like this a question from the back of the room—“Justice Scalia, when did you first become an originalist?”—as though it is some kind of weird affliction that seizes some people—“When did you first start eating human flesh?”

Although it is a minority view now, the reality is that, not very long ago, originalism was orthodoxy. Everybody, at least purported to be an originalist. If you go back and read the commentaries on the Constitution by Joseph Story, he didn't think the Constitution evolved or changed. He said it means and will always mean what it meant when it was adopted.

Or consider the opinions of John Marshall in the Federal Bank case,* where he says, we must not, we must always remember it is a constitution we are expounding. And since it's a constitution, he says, you have to give its provisions expansive meaning so that they will accommodate events that you do not know of which will happen in the future.

Well, if it is a constitution that changes, you wouldn't have to give it an expansive meaning. You can give it whatever meaning you want and when future necessity arises, you simply change the meaning. But anyway, that is no longer the orthodoxy.

Oh, one other example about how not just the judges and scholars believed in originalism, but even the American people. Consider the Nineteenth Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if that issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that's not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn't mean that you can't discriminate in the franchise—not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn't unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.

Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did. We had willful judges then, and we will have willful judges until the end of time. But the difference is that prior to the last fifty years or so, prior to the advent of the “Living Constitution,” judges did their distortions the good old fashioned way, the honest way—they lied about it. They said the Constitution means such and such, when it never meant such and such.

It's a big difference that you now no longer have to lie about it, because we are in the era of the evolving Constitution. And the judge can simply say, “Oh yes, the Constitution didn't used to mean that, but it does now.” We are in the age in which not only judges, not only lawyers, but even school children have come to learn the Constitution changes. I have grammar school students come into the court now and then, and they recite very proudly what they have been taught: “The Constitution is a living document.” You know, it morphs.

Well, let me first tell you how we got to the “Living Constitution.” You don't have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn't have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress, or government could not impose any restrictions upon speech. Libel laws for example, were clearly Constitutional. Nobody thought the First Amendment was carte blanche to

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libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious.” That is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law.

It's one thing for a state to amend its libel law and say, “We think that public figures shouldn't be able to sue.” That's fine. But the courts have said that the First Amendment, which never meant this before, now means that if you are a public figure, that you can't sue for libel unless it's intentional, malicious. So that's one way to do it.

Another example is: the Constitution guarantees the right to be represented by counsel; that never meant the State had to pay for your counsel. But you can reinterpret it to mean that.

That was step one. Step two, I mean, that will only get you so far. There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, inasmuch as it's a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But lawyers talk this way all the time.

What substantive due process is, is quite simple, the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It's a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.

Then we come to step three. Step three: that limitation is eliminated. Within the last twenty years, we have found to be covered by Due Process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for two hundred years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for two hundred years.

So it is literally true, and I don't think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text, and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process. What are the arguments usually made in favor of the Living Constitution? As the name of it suggests, it is a very attractive philosophy, and it's hard to talk people out of it: the notion that the Constitution grows. The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap.

This is the equivalent of, an anthropomorphism equivalent to what you hear from your stock broker, when he tells you that the stock market is resting for an assault on the eleven-thousand level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete's sake; it's a legal document, and like all legal documents, it says some things, and it doesn't say other things.

And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again. My Constitution is a very flexible Constitution. You think the death penalty is a good idea: persuade your fellow citizens and adopt it. You think it's a bad idea: persuade them the other way and eliminate it. You want a right to abortion: create it the way most rights are created in a democratic society. Persuade your fellow citizens it's a good idea, and enact it. You want the opposite, persuade them the other way. That's flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce: rigidity.

Abortion, for example, is offstage, it is off the democratic stage, it is no use debating it, it is unconstitutional. I mean prohibiting it is unconstitutional. I mean it's no use debating it anymore. Now and forever, coast to coast, I guess until we amend the constitution, which is a difficult thing. So, for whatever reason you might like the Living Constitution, don't like it because it provides flexibility. That's not the name of the game.

Some people also seem to like it because they think it's a good liberal thing. That somehow this is a conservative/liberal battle. And conservatives like the old- fashioned originalist Constitution and liberals ought to like the Living Constitution. That's not true either. The dividing line between those who believe in the Living Constitution and those who don't is not the dividing line between conservatives and liberals.

Conservatives are willing to grow the Constitution to cover their favorite causes just as liberals are. And the best example of that is two cases we announced some years ago on the same day, the same morning. One case was Romer v. Evans, in which the people of Colorado had enacted an amendment to the State Constitution by plebiscite, which said that neither the State, nor any subdivision of the State would add to the protected statuses against which private individuals cannot discriminate. The usual ones are: race, religion, age, sex, disability and so forth. Would not add sexual preference. Somebody thought that was a terrible

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idea, and since it was a terrible idea, it must be unconstitutional. Brought a lawsuit, it came to the Supreme Court. And the Supreme Court said, “Yes, it is unconstitutional.” On the basis of . . . I don't know. The Sexual Preference Clause of the Bill of Rights, presumably. And the liberals loved it; and the conservatives gnashed their teeth.

The very next case we announced is a case called BMW v. [Gore]. Not the [Gore] you think; this is another [Gore]. Mr. Gore had bought a BMW, which is a car supposedly advertised at least as having a superb finish, baked seven times in ovens deep in the Alps, by dwarfs. And his BMW apparently had gotten scratched on the way over. They did not send it back to the Alps, they took a can of spray-paint and fixed it. And he found out about this and was furious, and he brought a lawsuit. He got his compensatory damages, a couple of hundred dollars, the difference between a car with a better paint job and a worse paint job. Plus, $2 million against BMW for punitive damages for being a bad actor, which is absurd of course, so it must be unconstitutional. BMW appealed to my court, and my court said, “Yes, it's unconstitutional.” In violation of, I assume, the Excessive Damages Clause of the Bill of Rights. And if excessive punitive damages are unconstitutional, why aren't excessive compensatory damages unconstitutional? So you have a federal question whenever you get a judgment in a civil case. Well, that one the conservatives liked, because conservatives don't like punitive damages, and the liberals gnashed their teeth.

I dissented in both cases because I say, “A pox on both their houses.” It has nothing to do with what your policy preferences are; it has to do with what you think the Constitution is.

Some people are in favor of the Living Constitution because they think it always leads to greater freedom. There's just nothing to lose. The evolving Constitution will always provide greater and greater freedom, more and more rights. Why would you think that? It's a two-way street. And indeed, under the aegis of the Living Constitution, some freedoms have been taken away. . . .

Well, I've talked about some of the false virtues of the Living Constitution, let me tell you what I consider its, principal, vices are. Surely the greatest, you should always begin with principal, its greatest vice is its illegitimacy. The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution. Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality. Our Constitution doesn't say anything like that. But John Marshall says in Marbury v. Madison: look, this is lawyers’ work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts; they try to read the two to comport with each other. If they can't, it's judges’ work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that's what Marshall says: it's judges’ work.

If you believe, however, that the Constitution is not a legal text, like the texts involved when judges reconcile or decide which of two statutes prevail; if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year; if you think that it is meant to reflect, as some of the Supreme Court cases say, particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society, if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I'm afraid to ask.

If that is what you think the Constitution is, then Marbury v. Madison is wrong. It shouldn't be up to the judges, it should be up to the legislature. We should have a system like the English. Whatever the legislature thinks is constitutional is constitutional. They know the evolving standards of American society, I don't. So in principle, it's incompatible with the legal regime that America has established.

Secondly, and this is the killer argument, I mean, it's the best debater's argument. They say in politics, you can't beat somebody with nobody, it's the same thing with principles of legal interpretation. If you don't believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I'm looking for. When I find it, the original meaning of the Constitution, I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way, even though I don't like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact, must depend upon a fact found by a jury, once I find that's what the jury trial guarantee means, I am handcuffed. Though I'm a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me.

Now, if you're not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the living constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don't we? The philosophy of John Rawls? That's easy. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under eighteen, who committed their crimes when they were under eighteen, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.”

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I have put this question, you know I speak at law schools with some frequency just to make trouble, and I put this question to the faculty all the time, or incite the students to ask their living constitutional professors. “OK professor, you are not an originalist, what is your criterion?” There is none other.

And finally, this is what I will conclude with, although it is not on a happy note, the worst thing about the Living Constitution is that it will destroy the Constitution. I was confirmed, close to nineteen years ago now, by a vote of ninety-eight to nothing. The two missing were Barry Goldwater and Jake Garn, so make it a hundred. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man, somebody who could read a text and give it its fair meaning, had judicial impartiality and so forth. And so I was unanimously confirmed.

Today, barely twenty years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we're picking people to draw out of their own conscience and experience, a new constitution, with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right, and the other right. We want to pick people that would write the new constitution that we would want.

And that is why you hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Halfway between what it really means and what you'd like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, “We're not yet ready to say that. Stay tuned, in a few years, the time may come, but we're not yet ready.” And that was a moderate decision, because I think most people would not want—if we had gone, looked into that and created a national right to assisted suicide that would have been an immoderate and extremist decision.

I think the very terminology suggests where we have arrived: at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts you know, “Judge so and so, do you think there is a right to this in the Constitution? You don't? Well, my constituents think there ought to be, and I'm not going to appoint to the court someone who is not going to find that.” When we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority. And they will be selecting justices who will devise a constitution that the majority wants.

And that of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take that are favored by the majority is a recipe for destruction of what we have had for two hundred years.

ANTONIN SCALIA is an Associate Justice of the U.S. Supreme Court. He was appointed in 1986 by President Ronald Reagan.

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Stephen Breyer

Active Liberty: Interpreting Our Democratic Constitution

My discussion sees individual constitutional provisions as embodying certain basic purposes, often expressed in highly general terms. It sees the Constitution itself as a single document designed to further certain basic general purposes as a whole. It argues that an understanding of, and a focus upon, those general purposes will help a judge better to understand and to apply specific provisions. And it identifies consequences as an important yardstick to measure a given interpretation's faithfulness to these democratic purposes. In short, focus on purpose seeks to promote active liberty by insisting on interpretations, statutory as well as constitutional, that are consistent with the people's will. Focus on consequences, in turn, allows us to gauge whether and to what extent we have succeeded in facilitating workable outcomes which reflect that will.

Some lawyers, judges, and scholars, however, would caution strongly against the reliance upon purposes (particularly abstractly stated purposes) and assessment of consequences. They ask judges to focus primarily upon text, upon the Framers’ original expectations, narrowly conceived, and upon historical tradition. They do not deny the occasional relevance of consequences or purposes (including such general purposes as democracy), but they believe that judges should use them sparingly in the interpretive endeavor. They ask judges who tend to find interpretive answers in those decision-making elements to rethink the problem to see whether language, history, tradition, and precedent by themselves will not yield an answer. They fear that, once judges become accustomed to justifying legal conclusions through appeal to realworld consequences, they will too often act subjectively and undemocratically, substituting an elite's views of good policy for sound law. They hope that language, history, tradition, and precedent will provide important safeguards against a judge's confusing his or her personal, undemocratic notion of what is good for that which the Constitution or statute demands. They tend also to emphasize the need for judicial opinions that set forth their legal conclusions in terms of rules that will guide other institutions, including lower courts.

This view, which I shall call “textualist” (in respect to statutes) or “originalist” (in respect to the Constitution) or “literalist” (shorthand for both), while logically consistent with emphasizing the Constitution's democratic objectives, is not hospitable to the kinds of arguments I have advanced. Nor is it easily reconciled with my illustrations. Why, then, does it not undercut my entire argument?

The answer, in my view, lies in the unsatisfactory nature of that interpretive approach. First, the more “originalist” judges can not appeal to the Framers themselves in support of their interpretive views. The Framers did not say specifically what factors judges should take into account when they interpret statutes or the Constitution. This is obvious in the case of statutes. Why would the Framers have preferred (1) a system of interpretation that relies heavily on linguistic canons to (2) a system that seeks more directly to find the intent of the legislators who enacted the statute? It is close to obvious in respect to the Constitution. Why would the Framers, who disagreed even about the necessity of including a Bill of Rights in the Constitution, who disagreed about the content of that Bill of Rights, nonetheless have agreed about what school of interpretive thought should prove dominant in interpreting that Bill of Rights in the centuries to come?

In respect to content, the Constitution itself says that the “enumeration” in the Constitution of some rights “shall not be construed to deny or disparage others retained by the people.” Professor Bernard Bailyn concludes that the Framers added this language to make clear that “rights, like law itself, should never be fixed, frozen, that new dangers and needs will emerge, and that to respond to these dangers and needs, rights must be newly specified to protect the individual's integrity and inherent dignity.” Given the open-ended nature of content, why should one expect to find fixed views about the nature of interpretive practice?

If, however, justification for the literalist's interpretive practices cannot be found in the Framers intentions, where can it be found—other than in an appeal to consequences, that is, in an appeal to the presumed beneficial consequences for the law or for the nation that will flow from adopting those practices? And that is just what we find argued. That is to say, literalist arguments often try to show that that approach will have favorable results, for example, that it will deter judges from substituting their own views about what is good for the public for those of Congress or for those embodied in the Constitution. They argue, in other words, that a more literal approach to interpretation will better control judicial subjectivity. Thus,

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while literalists eschew consideration of consequences case by case, their interpretive rationale is consequentialist in this important sense.

Second, I would ask whether it is true that judges who reject literalism necessarily open the door to subjectivity. They do not endorse subjectivity. And under their approach important safeguards of objectivity remain. For one thing, a judge who emphasizes consequences, no less than any other, is aware of the legal precedents, rules, standards, practices, and institutional understanding that a decision will affect. He or she also takes account of the way in which this system of legally related rules, institutions, and practices affects the world.

To be sure, a court focused on consequences may decide a case in a way that radically changes the law. But this is not always a bad thing. For example, after the latenineteenth-century Court decided Plessy v. Ferguson, the case which permitted racial segregation that was, in principle, “separate but equal,” it became apparent that segregation did not mean equality but meant disrespect for members of a minority race and led to a segregated society that was totally unequal, a consequence directly contrary to the purpose and demands of the Fourteenth Amendment. The Court, in Brown v. Board of Education and later decisions, overruled Plessy, and the law changed in a way that profoundly affected the lives of many.

In any event, to focus upon consequences does not automatically invite frequent dramatic legal change. Judges, including those who look to consequences, understand the human need to plan in reliance upon law, the need for predictability, the need for stability. And they understand that too radical, too frequent legal change has, as a consequence, a tendency to undercut those important law-related human needs. Similarly, each judge's individual need to be consistent over time constrains subjectivity. As Justice O'Connor has explained, a constitutional judge's initial decisions leave “footprints” that the judge, in later decisions, will almost inevitably follow.

Moreover, to consider consequences is not to consider simply whether the consequences of a proposed decision are good or bad, in a particular judge's opinion. Rather, to emphasize consequences is to emphasize consequences related to the particular textual provision at issue. The judge must examine the consequences through the lens of the relevant constitutional value or purpose. The relevant values limit interpretive possibilities. If they are democratic values, they may well counsel modesty or restraint as well. And I believe that when a judge candidly acknowledges that, in addition to text, history, and precedent, consequences also guide his decision-making, he is more likely to be disciplined in emphasizing, for example, constitutionally relevant consequences rather than allowing his own subjectively held values to be outcome determinative. In all these ways, a focus on consequences will itself constrain subjectivity.

Here are examples of how these principles apply. The First Amendment says that “Congress shall make no law respecting an establishment of religion.” I recently wrote (in dissent) that this clause prohibits government from providing vouchers to parents to help pay for the education of their children in parochial schools. The basic reason, in my view, is that the clause seeks to avoid among other things the “social conflict, potentially created when government becomes involved in religious education.” Nineteenth- and twentieth-century immigration has produced a nation with fifty or more different religions. And that fact made the risk of “social conflict” far more serious after the Civil War and in twentieth-century America than the Framers, with their eighteenth-century experience, might have anticipated. The twentieth-century Supreme Court had held in applicable precedent that, given the changing nature of our society, in order to implement the basic value that the Framers wrote the clause to protect, it was necessary to interpret the clause more broadly than the Framers might have thought likely.

My opinion then turned to consequences. It said that voucher programs, if widely adopted, could provide billions of dollars to religious schools. At first blush, that may seem a fine idea. But will different religious groups become concerned about which groups are getting the money and how? What are the criteria? How are programs being implemented? Is a particular program biased against particular sects, say, because it forbids certain kinds of teaching? Are rival sects failing to live up to the relevant criteria, say, by teaching “civil disobedience” to “unjust laws”? How will claims for money, say, of one religious group against another, be adjudicated? In a society as religiously diverse as ours, I saw in the administration of huge grant programs for religious education the potential for religious strife. And that, it seemed to me, was the kind of problem the First Amendment's religion clauses seek to avoid.

The same constitutional concern—the need to avoid a “divisiveness based upon religion that promotes social conflict”—helped me determine whether the Establishment Clause forbade two public displays of the tables of the Ten Commandments, one inside a Kentucky state courthouse, the other on the grounds of the Texas State Capitol. It is well recognized that the Establishment Clause does not allow the government to compel religious practices, to show favoritism among sects or between religion and non-religion, or to promote religion. Yet, at the same time, given the religious beliefs of most Americans, an absolutist approach that would purge all religious references from the public sphere could well promote the very kind of social conflict that the Establishment Clause seeks to avoid. Thus, I thought, the Establishment Clause cannot automatically forbid every public display of the Ten Commandments, despite the religious nature of its text. Rather, one must examine the context of the particular display to see whether, in that context, the tablets convey the kind of government-endorsed religious message that the Establishment Clause forbids.

The history of the Kentucky courthouse display convinced me and the other members of the Court's majority

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that the display sought to serve its sponsors’ primarily religious objectives and that many of its viewers would understand it as reflecting that motivation. But the context of the Texas display differed significantly. A private civic (and primarily secular) organization had placed the tablets on the Capitol grounds as part of the organization's efforts to combat juvenile delinquency. Those grounds contained seventeen other monuments and twenty-one historical markers, none of which conveyed any religious message and all of which sought to illustrate the historical “ideals” of Texans. And the monument had stood for forty years without legal challenge. These circumstances strongly suggested that the public visiting the Capitol grounds had long considered the tablets’ religious message as a secondary part of a broader moral and historical message reflecting a cultural heritage—a view of the display consistent with its promoters’ basic objective.

It was particularly important that the Texas display stood uncontested for forty years. That fact indicated, as a practical matter of degree, that (unlike the Kentucky display) the Texas display was unlikely to prove socially divisive. Indeed, to require the display's removal itself would encourage disputes over the the removal of longstanding depictions of the Ten Commandments from public buildings across the nation, thereby creating the very kind of religiously based divisiveness that the Establishment Clause was designed to prevent. By way of contrast, the short and stormy history of the more contemporary Kentucky display revealed both religious motivation and consequent social controversy. Thus, in the two cases, which I called borderline cases, consideration of likely consequences—evaluated in light of the purposes or values embodied within the Establishment Clause—helped produce a legal result: The Clause allowed the Texas display, while it forbade the display in Kentucky.

I am not arguing here that I was right in any of these cases. I am arguing that my opinions sought to identify a critical value underlying the Religion Clauses. They considered how that value applied in modern-day America; they looked for consequences relevant to that value. And they sought to evaluate likely consequences in terms of that value. That is what I mean by an interpretive approach that emphasizes consequences. Under that approach language, precedent, constitutional values, and factual circumstances all constrain judicial subjectivity.

Third, “subjectivity” is a two-edged criticism, which the literalist himself cannot escape. The literalist's tools—language and structure, history and tradition—often fail to provide objective guidance in those truly difficult cases about which I have spoken. Will canons of interpretation provide objective answers? One canon tells the court to choose an interpretation that gives every statutory word a meaning. Another permits the court to ignore a word, treating it as surplus, if otherwise the construction is repugnant to the statute's purpose. Shall the court read the statute narrowly as in keeping with the common law or broadly as remedial in purpose? Canons to the left to them, canons to the right of them, which canons shall the judges choose to follow?

. . . Fourth, I do not believe that textualist or originalist methods of interpretation are more likely to produce clear, workable legal rules. But even were they to do so, the advantages of legal rules can be overstated. Rules must be interpreted and applied. Every law student whose class grade is borderline knows that the benefits that rules produce for cases that fall within the heartland are often lost in cases that arise at the boundaries.

. . . Fifth, textualist and originalist doctrines may themselves produce seriously harmful consequences—outweighing whatever risks of subjectivity or uncertainty are inherent in other approaches.

. . . Literalism has a tendency to undermine the Constitution's efforts to create a framework for democratic government—a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively. Insofar as a more literal interpretive approach undermines this basic objective, it is inconsistent with the most fundamental original intention of the Framers themselves.

For any or all of these reasons, I hope that those strongly committed to textualist or literalist views—those whom I am almost bound not to convince—are fairly small in number. I hope to have convinced some of the rest that active liberty has an important role to play in constitutional (and statutory) interpretation.

That role, I repeat, does not involve radical change in current professional interpretive methods nor does it involve ignoring the protection the Constitution grants fundamental (negative) liberties. It takes Thomas Jefferson's statement as a statement of goals that the Constitution now seeks to fulfill: “[A]ll men are created equal.” They are endowed by their Creator with certain “unalienable Rights.” “[T]o secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” It underscores, emphasizes, or reemphasizes the final democratic part of the famous phrase. That reemphasis, I believe, has practical value when judges seek to assure fidelity, in our modern society, to these ancient and unchanging ideals.

STEPHEN BREYER is an Associate Justice of the U.S. Supreme Court. He was appointed in 1994 by President Bill Clinton.