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Why choose pragmatism rather than textualism?” /></p>
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<p class=Close-up of a pencil erasing a sentence from the United States Constitution.

  • Érika Bisaillon (View profile)Érika Bisaillon

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The progressive former justice of the Supreme Court of the United States, Stephen Gerald Breyer, makes his hobby horse the pragmatic interpretation of legal texts and the American Constitution. Despite his departure from the institution in June 2022, he fights against textualism and originalism, movements on the rise among our neighbors to the South.

Textualists say we must trust words. Certainly, but I think it’s a restrictive vision. We must make an effort to identify the real objectives of the law as well as its constitutional value, he explains in an interview on ICI Première.

To listen to: the interview with former American Supreme Court justice Stephen Gerald Breyer, broadcast on the show Tout terrain.

With nearly 30 years of experience as a justice on the United States Supreme Court, Stephen Gerald Breyer believes that “values” should take precedence over the use of words. We must look at the probable consequences of a false or faulty interpretation, he believes.

Words are a big help, but they don’t always answer the question. Justices need to look back and look at what the Founding Fathers had in mind when these words were added to the Constitution in 1788, he continued, because the world has changed.

Interpreting the Constitution is not without intellectual effort.

A quote from Stephen Gerald Breyer, ex -progressive justice on the United States Supreme Court

Stephen Gerald Breyer directly alludes to the current trend affecting the United States Supreme Court. In recent years, certain judges appointed by the former administration of Donald Trump have claimed a textualist approach to the Constitution and legal texts.

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Former United States Supreme Court Justice Stephen Gerald Breyer on December 1, 2022

Just think of the New York State Rifle v. Bruen who overturned a New York law that required a showing of good cause to carry a concealed weapon in public. In this case, the textualists based their argument on the Second Amendment which states that a well-organized militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not not be transgressed.

A rather restrictive interpretation of this amendment thus prompted judges to declare the New York law unconstitutional.

“I think a judge has to consider the harm that guns can cause. The right present in the Constitution is not absolute. It must be applied according to the objectives sought and the potential consequences,” believes the ex-judge, adding that he hates to admit the presence of approximately 400 million firearms in the United States, but especially the 45,000 Americans died from guns in 2020 alone, more than half of them suicides.

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The building housing the Supreme Court of the United States.

Better known in Quebec and Canada, the Dobbs v. decisionJackson Women's Health Organization(which overturned Roe v. Wade regarding the right to abortion) comes from a purely textualist and originalist approach. In fact, textualists believe that there is no right to abortion in the Constitution.

Remember that on June 24, 2022, in a historic decision, the Supreme Court of the United States invalidated the Roe v. Wade, thus burying the 1973 ruling which protected the right to abortion nationally.

However, in the eyes of Stephen Gerald Breyer, the law has defined for over 50 years that a woman has the right to have an abortion up to 24 weeks of pregnancy in the United States. He thus considers that the principle stare decisis– a principle of law which ensures that previous decisions which have been rendered by courts cannot be overturned without serious reasonable grounds – has been flouted.

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Supporters of abortion rights demonstrated in front of the United States Supreme Court in June 2023.

Stephen Gerald Breyer is aware that the question of political partisanship arises, but someone with more than 40 years of experience behind the tie believes that all judges are in good faith.

“What happens is that the groups that are really politicized go to great lengths to get the president to appoint judges who agree with their ideals,” he explains. To this end, Stephen Gerald Breyer emphasizes that there is a high risk that the judge will thus put his own values ​​​​and his own ideas forward.

A judge should never make a judgment based on the political temperature. However, they remain human and they are affected by the political context, he deplores, while recalling the importance of the separation of powers.

Not surprising, then, to learn that only 41 percent of Americans approve of the work of the Supreme Court. It is therefore this bond of trust that Stephen Gerald Breyer is trying to rebuild with the publication of his book Reading the Constitution : Why I Chose Pragmatism, Not Textualism, whose date release is scheduled for March 26.

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