Scalia and Breyer: What Disagreement Should Look Like

Whenever I begin to lose hope that people who disagree can have a heated but civil discussion on the very thing they disagree about, I read and listen to Supreme Court Justices. They are brilliant, respectful, and are something like real friends behind all the legal babble. Here’s an example of Antonin Scalia and Stephen Breyer talking about their different approaches to interpreting the constitution.

Scalia is an originalist, believing the constitution is a dead (or as he calls it “enduring”) document. Breyer, on the opposite end, is a non-originalist who believes the constitution to be a living document in that its meaning evolves along with the times. I learned that the division between these two men and other legal thinkers is not so much on political lines, but on the strictness with which they interpret the text of the constitution.

I read about 30 pages of Scalia’s latest book on Reading Law (it’s too dense for my tastes) and I find his appreciation of the enduring nature of meaning in text very appealing, though I still disagree with the notion that a constitution needs to be amended in order to rule on cases involving modern technology.

My favorite of his ideas that he uses as a defense for originalism is similar to the Churchill quote of “democracy is the worst form of government except for all those others that have been tried”. Scalia says that his burden is not to show that originalism is perfect, but to show that it is better than the alternative. We have to remember that idea when we argue about policy, because it’s rare that anything in political life will not have significant drawbacks hidden away in the poorly-lit corner of our collective consciousness.

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