Retired U.S. Supreme Court Justice Stephen G. Breyer wants America to know that today’s high court isn’t pragmatic. For good measure, he declares that he is, especially when it comes to interpretating law.

That’s not just conjecture. That’s laid out in the title to his new 250-page book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.” It’s a gaslighting of the U.S. Constitution, an attempt to sway opinion that rights protected by the founding document aren’t applicable today, since society and technology have changed since 1791. Justice Breyer argues that the words written don’t mean what the Founders meant because reading them over 200 years later changes the meaning.

The liberal justice retired under pressure from Democrats to ensure President Joe Biden would appoint at least one younger liberal justice to the Supreme Court. In 2022, Justice Breyer was succeeded by Justice Ketanji Brown Jackson, a former Breyer clerk.

Dueling Jurisprudence

The Washington Post offered a glowing review of Justice Breyer’s book, which rejects the legal doctrines of originalism and textualism that have been the favored approaches by several sitting Supreme Court justices, including Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. That was also the legal philosophy of the late Justice Antonin Scalia. Originalism is the theory that constitutional text should be given the original public meaning at the time in which a law was enacted. Textualism is the legal interpretation that focuses on the plain meaning of a text of laws, emphasizing how the Constitution was understood at the time of ratification in 1788 and the subsequent Bill of Rights’ ratification in 1791.

That contrasts sharply with Justice Breyer’s constitutional pragmatist approach, which instead of focusing on what lawmakers meant with the words they chose to include in the Constitution and laws, considers what is the likely consequence of interpretations. Justice Breyer believes in a “living Constitution” or one that isn’t anchored by words lawmakers chose. Rather those meanings are reapplied by modern interpretations of those meanings. This judicial philosophy is an excuse to allow judges to act like kings (or queens) make law instead of interpreting and apply the law as enacted by the “people’s” elected representatives or the Founding Fathers.

Justice Breyer writes in his 250-page book, his latest of a dozen books, that originalism and textualism get it wrong – especially when it comes to the Second Amendment. Justice Breyer said that applying the conservative approaches of originalism and textualism is an impossible task for what are supposed to be the sharpest legal minds in the nation. He says justices aren’t historians and expecting them to know the history of how a law was drafted at the time doesn’t help the Supreme Court when it comes to “answering contested historical questions or applying those answers to resolve contemporary problems.”

Relitigating Bruen… and Heller

Justice Breyer points to the Supreme Court’s Bruen decision as an example. That case, of course, affirmed what the Supreme Court held in the 2008 Heller decision, that the Second Amendment is an individual right. The Bruen decision held that the right to keep and bear arms may be exercised in public as well as in the home.

Unsurprisingly, Justice Breyer wrote a dissenting opinion in Bruen, which was joined by Justices Sonia Sotomayor and Elena Kagan. Justice Breyer also dissented in the Supreme Court’s Heller decision.

“In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms,” Justice Breyer wrote in his Bruen dissent.

The Washington Post points out that Justice Breyer argues that it is unfathomable to think that the Founders could have imagined the United States today, with large metropolises and the advances in technology that brought the muzzleloading muskets to the Modern Sporting Rifles (MSRs) today.

“In part for these reasons, guns today pose a unique threat to American society if not properly regulated,” Justice Breyer writes in his book. “But originalism says that judges cannot consider these modern developments and practical realities. Nor can judges weigh the resulting interest of federal, state, and local governments in regulating guns to protect the health and welfare of all their citizens.” But it is not the role of the judiciary to weigh interests. That is the judgement of elected bodies within the constraints imposed by the Constitution, which includes the means for the people to amend it if necessary or sufficiently desired.

Limiting Founders’ Visions

Justice Breyer’s argument, though, falls flat. Justice Breyer is actually arguing that the Founders could not have imagined that the very rights they bound the government from infringing would be applicable today. His argument is that the Second Amendment should have withered because America grew and technology advanced. That’s not at all what the Founders intended. They agreed that rights are endowed to the people by “their Creator.” That’s a timeless authority, unlike governments. The Founders just shook off the tyrannical government from the British Crown. The principles of limited government and individual liberty and freedom articulated in the Declaration of Independence and enshrined in the U.S. Constitution are immutable and timeless. They exist to constrain the government and prevent tyranny.

Justice Breyer would unmoor those rights from the anchor that steadies them in the shifting tides of public opinion and set them adrift. That would make rights unrecognizable, a passing theory instead of bedrock truths.

None of this is unexpected. Justice Breyer’s book is another chance to grab headlines and attempt to shift opinion from which he was in the minority in two major Second Amendment cases. The late Justice John Paul Stevens, who also wrote the dissent in Heller, attempted his own rejection of history, originalism and foundational rights when he published a similar book in his retirement.

Justice Stevens once called the Second Amendment a “relic of the 18th Century” in an op-ed published The New York Times in 2018. In his memoir, “The Making of a Justice,” he claimed that Heller was “Unquestionably the most clearly incorrect decision that the Court announced during my tenure on the bench.”

Americans should expect that the justices sitting on the Supreme Court’s bench should be able to examine the historical evidence of what the words of the law meant at the time they were passed. This criticism ignores that our judicial system is an adversarial one where the parties bring forth expert witnesses that can include historians. This is something Justice Thomas explained writing for the majority in Bruen. That’s not too high of a bar to expect of the leading legal minds interpreting the law. That’s the very reason these justices are nominated by the president and confirmed by the U.S. Senate. That’s why they endure hours, if not days, of public and Senate scrutiny. It’s also why they are appointed for life.

Post-bench books mourning losses on key Supreme Court decisions might be a way to earn a living in retirement. But, they’re not the way our courts should be searching for guideposts for deciding future judicial decisions.

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48 COMMENTS

  1. Yeah, Pragmatism is the gospel of Marx. Pragmatism is the Marxist premise of self will run riot. It’s like the Ten Commandments being changed to the Ten Suggestions.

    • Marx was not a pragmatist; however, Stalin was. Pragmatism is the gospel of true fascism (the real meaning of fascism, not the fake meaning that modern fascists and communists like to throw at freedom lovers). Fascism is like a chameleon–it can look like any other form of government and belief system if it suits the government’s needs in the moment.

      • Breyer saved his true fascism for leaking the Dobb’s abortion decision just before he retired. The liberal vindictiveness is why we have so much violence on the democrat side now.

  2. “He says justices aren’t historians and expecting them to know the history of how a law was drafted at the time doesn’t help the Supreme Court when it comes to “answering contested historical questions or applying those answers to resolve contemporary problems.””

    There’s no need to be a historian when both Scalia in ‘Heller’ and Thomas in ‘Bruen’ included a history lesson in each to reference when deciding 2A cases.

    And yet, the Fascist Leftist Scum ™ conveniently flat ignore it when ruling…

  3. Based on Justice Breyer’s logic, slavery could make a comeback simply due to “changing trends” – and the courts should just go along with it.

    This is insanity. The very reason we write laws with detailed language is to prevent societal whims from changing the meanings of those laws.

    Any justice that does not read and interpret the law as written is unlawfully creating law. That power is held SOLELY by the legislative branch. Legislating from the bench violates the separation of powers.

    Of course, if you believe in a “living constitution” the limits and protections in the Constitution don’t mean much.

  4. I have yet to see someone who believes the 2nd Amendment should be limited to the technology of 1791 make the same argument about the 1st Amendment. Funny how that goes.

    • “I have yet to see someone who believes the 2nd Amendment should be limited to the technology of 1791 make the same argument about the 1st Amendment.”

      Or the fourth, for that matter.

      You know, the one about searching personal papers, digital devices being the natural successor to pen and ink…

    • Generally speaking, the people who make the argument that the 2A should be limited to the tech of 1791 don’t believe that the 1A should exist in the first place.

  5. Breaking….Victory for TRUMP! Letitia James is FURIOUS! NY Appeals Court Reduces Bond.

  6. It’s What’s Trending? So says a pompous Gun Control loving azzhole who enjoys special armed security at taxpayer expense. Then there is the lame repetitive worn slap out Founder’s musket vs AR argument. Pack some muskets balls in an ordinary pilgrim’s powder horn, insert fuse, light and throw in a redcoat tent, ka boom…AR comparison argument sinks.
    Frankly Gun Control is an attribute of pedophiles, child molesters, rapists, kidnappers, tyrants, democRats et al.

  7. Who. Fucking. Cares. He’s a retired judge. His opinions are like my asshole, it’s stinks.

    • When your enemy tells you how they think tactically and strategically, it’s a good idea to listen.

  8. “Justice Breyer was succeeded by Justice Ketanji Brown Jackson, a former Breyer clerk” – replacing a POS prog with an idiotic POS affirmative action prog.

    A great example of progs and their changing whims of the moment: a few years ago progs were (rightfully) marching against tribal barbarians in Darkest Africa who were cutting off the girl parts of young females – today “doctors”/barbarians are doing similar and are the heros of the left and are funded by the dems.

  9. Of course he believes that individual rights are ‘written in pencil’. That way he and his fellow liberals can change laws to fit their own logic. All rights belong to the government, not the individual.

    • Thank God it was written with the uneraseable blood of patriots. I hope this old fart gets hemorroids.

  11. Where’s the guy that used to post that ASCII middle finger? He needs to show up for this one.

    I want to see him make these arguments against other amendments of the bill of rights. “Due to the dangers posed by modern terrorists, people shouldn’t have a right to remain silent.” “Due to the dangers of people like the J6 rioters, people should give up their right to a speedy trial by a jury of their peers.” “Due to the threat of X Y and Z, people’s right to not be cruelly or unusually punished should be abandoned.”

    It sounds stupid when you say it that way and the absurdity is clear as day.

    • The right to a speedy trial and the right to a trial by a jury of your peers are two different things. You have to waive one or the other. Allowing it to go the “speedy trial” route usually means a quick bench trial where there’s less time for your attorney to review the evidence and a very good chance that the judge throws you in the slammer. Waiving the speedy trial and (if it’s an M1 or above) demanding a trial by jury puts more pressure on the prosecution to come down to a lower charge or even drop the charge.

  13. How can you have a living document be the rules for the country? A living document really means we’ll decide the rules as the game is being played. Imagine a football game where the number of points you’d get for a touchdown were decided real time by the refs.

    BTW, isn’t Breyer the same idiot justice (might have been another quack liberal justice) who said NYC’s ban on carrying guns anywhere but to a gun range were ok because you could always travel out of state to exercise your 2A rights? .

  14. A PHD in history is not required to understand the plain text of the Constitution.
    Nor is a degree in English required. The problem is these sorts can’t handle the truth as revealed in the Constitution which should be our common ground.
    Simply put, they can’t handle the truth!

    Is murder still murder?
    Well yes it is.
    Then I have the right
    to defend my life even if
    a retired SC justice seeking
    injustice doesn’t think I do.

    • I have no desire to see the moron hang, but at the same time I would like to see him defend his logic taken to the ultimate extreme as in such a statement. It certainly shows the weakness of his position. He’d probably be like “that’s different” or something.

      • In all likelihood, he already knows.

        The outcome of his suggestions here is, essentially, the Revtribune or “Revtrib”. There’s basically no way a jurist of his stature can suggest what he’s suggested here without knowing this.

        Which strongly suggests that he wants this.

        • Yes. I suspect there are a few leftists at his level who are mindless automatons like the cannon fodder BLM activists and others of their ilk, but Breyer is not one of them. He is no moron, and he knows precisely what he has been doing. He is actively pursuing a world in which what Phillip suggested is a reality. I don’t know that I would say that his replacement is not a moron, however.

        • What’s the difference between a smart and dedicated revolutionary and a revolutionary ideologue who’s a moron?

          Which direction they stand when told to face the wall.

  16. So, my rights are dependent on what the majority are willing to let me have.

    This turns the ideal of individual liberty that our Founders believed in on its head.

    Breyer is a judicial tyrant – a thug in black robes.

  18. If they don’t behave ‘We’ will hit them with a bunch of words.
    If you don’t behave ‘We’ will let them hit you.
    .
    He is correct, 200 years ago the words “Shall Not Be Infringed” meant something different.

  19. The only right people like this retired buffoon thinks you should have is the right to remain silent whilst being tortured by the gov. goonsquads or criminals.

  20. Funny how much he sounds like Krylenko.

    Shit, Breyer’s well enough educated he might even know who that was. Which sorta makes you wonder if he knows what happened to ol’ Nikolai.

    “Don’t tell me our criminal courts ought to act exclusively on the basis of existing written norms. We live in the process of Revolution… we are creating a new law and new ethical norms.”

    “In our revolutionary court we are guided not by articles of the law and not by the degree of extenuating circumstances; in the tribunal we must proceed on the basis of considerations of expediency“ (emphasis mine).

    • He probably knows who Krylenko was, and I doubt he sees the parallel though it is fitting. I am going to qualify my “Breyer is not a moron” statement. Breyer is a revolutionary who fancies himself to be a social engineer of sorts working within the court system, along the lines of Warren. He is blind to the fact that he himself is a puppet, but in other aspects, he is no moron.

      • The degree of myopia in revolutionaries is an interesting, if purely academic, question, to be sure.

        Personally, based on the historical record, I doubt that it’s a form of stupidity or ignorance. It’s a zealous [blind] adherence to an ideology at all costs because the person derives meaning from belonging to the group that promulgates that ideology. The kind of cult-like thinking that produces loyalty unto death even when such a thing is, objectively, “misguided”.

        You can see examples of this in the “show trials” in the USSR but the best example is probably Mao’s Red Guard. After Mao got back into power and decided that the Red Guard was dangerous (it might overthrow him next) he decided to liquidate the Guard.

        He did that by sending them to be worked to death in the countryside. History reports that many of the Red Guard knowing that being sent to work as peasant farmers in the countryside was a form of death sentence were known to publicly proclaim that going to this fate would only make them better socialists.

        Which… in a roundabout way is sorta true, I guess.

  21. Judges aren’t historians – true, but do you know what else they aren’t? Legislators. Basing your judicial philosophy on the consequences of policy rather than the actual wording of the actual laws effectively nullifies those laws, and puts the jurist in the position of deciding which policy is best for the country – a role reserved for elected lawmakers.

  22. ‘The Founders could not have imagined that the’ country they helped to create would have unsecured borders, rampant drug abuse and countless international entanglements but yet here we are.

  23. Re: “He says justices aren’t historians and expecting them to know the history of how a law was drafted at the time doesn’t help the Supreme Court”

    Seriously? Can he read the document he is supposed to uphold? The “history” and purpose of the Second Amendment is clearly captured in the Preamble to the Bill of Rights where it says “The convention of a number of states having at the time of their adopting of the Constitution, expressed a desire, in order to prevent misconstruction or abuse, of its powers that further declaratory and restrictive clauses should be added”.

    Note that when the Second Amendment was written, every weapon was a weapon of war, there were no restrictions on the private ownership of weapons by law abiding, private citizens and the citizen militia (i.e. the people) were equally matched with the Continental Army. After all, if they weren’t equally matched, it would be pretty hard to deter or “prevent misconstruction or abuse” of the government’s powers – so in reality, the citizen militia of today should have the same firearms as the current US military.

    Unfortunately we are no longer equally matched because we have let our gun rights be eroded by buying into this notion if we just “compromise” to accommodate the people who – for whatever reason – don’t like guns they will quit trying to take away our gun rights. History has shown that no matter how much we “compromise”, it’s never enough so we need to stop “compromising”.

  24. He spouts the same bullshit they tried to cram down my throat in Constitutional Law class in college. “the Constitution is a living, breathing document that evolves over time and should be interpreted by the values at the time.” In other words, “amendments be damned, it’s what we say it is”.

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