Academic journal article The Yale Law Journal

Justice Breyer's Democratic Pragmatism

Academic journal article The Yale Law Journal

Justice Breyer's Democratic Pragmatism

Article excerpt

The pragmatic method is primarily a method of settling metaphysical disputes that otherwise might be interminable. Is the world one or many?--fated or free?--material or spiritual?--here are notions either of which may or may not hold good of the world; and disputes over such notions are unending. The pragmatic method in such cases is to try to interpret each notion by tracing its respective practical consequences. What difference would it practically make to any one if this notion rather than that notion were true? (1)

A Concise Statement of the Task In interpreting a statute a court should: Decide what purpose ought to be attributed to the statute and to any subordinate provision of it which may be involved;.... It should assume, unless the contrary unmistakably appears, that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably. (2)


As a law professor at Harvard Law School, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. (3) In an influential book, Breyer emphasized that regulatory problems were "mismatched" to regulatory tools; he urged that an understanding of the particular problem that justified regulation would help in the selection of the right tool. (4) One of Breyer's major innovations lay in an insistence on evaluating traditional doctrines not in a vacuum, but in light of the concrete effects of regulation on the real world, (5) Hence Breyer argued for a close connection between administrative law and regulatory policy. (6) Continuing his pragmatic orientation, he also emphasized the importance of better priority-setting in regulation--of finding mechanisms to ensure that resources are devoted to large problems rather than small ones. (7)

While some of Breyer's work touched on the separation of powers, (8) constitutional law was not his field. But as a member of the Supreme Court, Breyer has slowly been developing a distinctive approach of his own, one that also has a pragmatic dimension, and that can be seen as directly responsive to his colleague, Justice Antonin Scalia, and to Scalia's embrace of "originalism": the view that the Constitution should be interpreted to mean what it originally meant. (9)

A. Three Claims

This book announces and develops Breyer's theory. Its most distinctive feature is its effort to connect three seemingly disparate claims. The first is an insistence that judicial review can and should be undertaken with close reference to active liberty and to democratic goals, a point with clear links to the work of John Hart Ely. (10) The second is an emphasis on the centrality of "purposes" to legal interpretation, a point rooted in the great legal process materials of Henry Hart and Albert Sacks and, in particular, their brilliant note on statutory interpretation. (11) The third is a claim about the need to evaluate theories of legal interpretation with close reference to their consequences, a point whose foundations can be found in American pragmatism. In Breyer's view, any theory of interpretation must be assessed by taking close account of its actual effects.

Much of the interest and originality of Breyer's book lies in its brisk but ambitious effort to integrate these three claims. In my view, Breyer is right to see a connection between self-government and constitutional interpretation, and also to emphasize that a theory of interpretation must be attentive to its consequences. No such theory can be evaluated or defended without reference to its effects. In addition, Breyer argues convincingly for an approach to constitutional law that generally respects democratic prerogatives and also embodies a form of modesty, in the form of narrow rulings on the most difficult questions. But I shall raise two sets of questions about his analysis.

The first set involves the difficulties of purposivism. …

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