Thank you for segment puts reality into perspective. 🇺🇲🇺🇲🇺🇲🇺🇲. Judging individuals some uneducated rule of law in position not earned but bought. Fair and impartial in judgements. Leave out personal emotions.
Abraham Lincoln Gettysburg Address: The sacrifice of over 50 000 men who lay down their lives in the battle of the Gettysburg declared that the United States had to stand as a country where all men are created equal and should be treated as equal and should be treated as equals.
I'm a bit taken aback by Jeffrey's endorsement of Justice Breyer's description of his judicial philosophy as pragmatism? I've always known Justice Breyer to be a living constitutionalist, and there's nothing wrong with the term. Ascribing the name pragmatism to a judicial philosophy seems to me an attempt to re-brand Living Constitutionalists as moderate and the textualists anti-pragmatists. Is it not easier then to infer them to be radicals if they're not pragmatic in their interpretation? I certainly do not imagine Originalists regard Justice Breyer's judicial philosophy as pragmatic. This smells of politics to me. I've always admired Jeffrey Rosen for his commitment to non-partisanship, but I did not get the sense that Originalism was given a fair reading or interpretation by either Jeffrey or Justice Breyer. I've long listened to Justice Breyer speak of the court and law, especially when he would argue with Justice Scalia, but this did not come across as cogent and edifying. Even for Justice Breyer who is known to bounce around, I wish him the best.
" but I did not get the sense that Originalism was given a fair reading or interpretation by either Jeffrey or Justice Breyer". Maybe that's because it should be left to the originalist to give that meaning as neither men belong to that camp. Of course understanding what it is and isn't, I always like to go to one of my favorite scholars Erwin Chemerinsky. Enjoy. ua-cam.com/video/sPPmaijVDu0/v-deo.html
Pragmatism is the term that Scalia would use for it. I'd say it fits. It's not too charged and it's a pretty matter of fact way to describe what it is that isn't a derisive or exalting term in itself. I say that as someone who dislikes the "living constitution" and Breyer's philosophy in general. "Living constitutionalist" is probably a more politically charged way to say it, because it sounds inherently good. Remember Scalia's way of putting it, "it makes me sound like I'm promoting a dead constitution."
@@wingusdingus4958 I wish I could agree, but if Pragmatism is a matter of fact way of describing the philosophy Breyer has championed, then why could we not use the word to describe Originalism? I'm thinking you would say it wouldn't fit. This is what I am pointing to. It simply doesn't fit. I agree with you that Pragmatist is less politically charged, but it is also exalting, in my opinion. I mean, the definition of pragmatist describes so much of what many of us want in a judge, careful and measured. But as a philosophy, it has resulted in massively reshaping the meaning of the Constitution and American culture itself. Breyer's philosophy removes many guardrails on the limits of a judges interpretive power. I just don't see how that is based so much in pragmatism that it deserves the brand. I respect your difference of opinion, however.
@@tekgroove We could not use the word "pragmatism" to describe Originalism because Originalism uses principle above what is pragmatic. Take gun control for example, the principled stance may not be the pragmatic stance. The Originalist could say that gun control is "pragmatic" and has certain benefits, but he would generally disagree on principle with gun control because the second amendment has been applied to citizens forever. The Originalist would say that because of the way the country was organized at its founding and throughout the years that gun control is a pragmatic but unprincipled solution to problems like gun crime or mass shootings or whatever else. (You might disagree that gun control would have positive outcomes, I would. I generally don't think gun control is a good solution, but suppose for the sake of illustration it was a totally positive solution with no downsides, it would still go against the principles which the founding fathers intended.) I think "Pragmatism" also gives a sense of removing guard rails, when following guard rails would be "unpragmatic". I wouldn't say that "Pragmatism" sounds like you're being careful and measured, to me it gives off a sense of flexibility and doing what you feel is necessary in the moment. These might be things that people want in a judge but it's not necessarily how a judge ought to act, making up interpretations on the fly as it suits the feelings of the day. A judge ought to be almost mechanical in how he does his job, even if the uneducated person might want a judge to impose his own morality when it suits him.
@@wingusdingus4958 Thank you for that. I think I'm seeing more clearly the rationale behind the concepts of pragmatist or principled themselves. It almost sounds like this is being taught to students as a way to understand the rationales behind Originalism or Living Constitutionalist. I find myself still wrestling with the idea of whether either are sound philosophies for interpreting the Constitution. I tend to see strengths and weaknesses in both approaches. I remember Justice Breyer saying once that we citizens wouldn't want to live in this country if the Constitution were interpreted only by Originalists. I always thought he meant that the country wouldn't be as democratic. We wouldn't have had the expansion of civil rights and protections we have been afforded through the interpretive doctrine he so advocated. He may indeed be right about that, if that is what he meant in the first place, but I do believe he and those like him have short circuited the system in a way. States and Congress are losing their ability to effectively govern, and I see a link between this and the expansion of rights we have seen over the last 90 years. When judges can say what the law means, which is just judicial review, but they're source of interpretation is what they believe the law to mean now, judges are really just a vehicle for the beliefs of the present moment. In a weird way, judges are now representing the will of the people via the will of the majority of the court. This basically gets expressed as the will of the people, and unless legislatures have supermajorities, there is little that can be done to change it, unless the court itself reverses. This just isn't the republic we were given. But that's a whole other bucket of fish. Thank you for the clarity of your words.
Pragmatism is inconsistent with "Rule of Law." The Legislative Branch is responsible for the design, development and maintenance and therefore the meaning of the Laws. SOTU using any other meaning constitutes 'legislating from the bench.' Doing that largely negates the self-correction and self-improvement mechanisms for our body of Laws, thereby doing more long term harm than any short term good it might do. SOTU is responsible for insisting that Congress resolve any ambiguities and conflicts in the body of Laws for which they are responsible i.e. SOTU needs to provide some basic Quality Assurance.
Maybe if legislators understood that it was the job of judges to interpret the words on the paper, they wouldn’t write ambiguous statutes. And if legislators didn’t assume judges would always rule their way because they think courts should be the enforcement mechanism of their policies, they wouldn’t get so mad when courts don’t rule the way they want them to.
They write vague statutes on purpose so they can be widely applied as needed. It's impossible to write a statute for every foreseeable and unforeseeable but applicable context because the world, technology and society is constantly changing. Judges are supposed to use the intent of statutes and then apply it to the case at hand. Legislators can't write specifically to every case that will land before a judge. It is a process to come to consensus to pass legislation. It's vague to it can be useful today and hopefully tomorrow.
I do not agree with textualism but at the same time I will nitpick on the Breyer's 30% rule. It works only in some cases especially only when the other side has the same final intent in mind - for example, you are trying to formulate a policy to end homelessness. But would the revolutionaries have agreed for 30% of the US while fighting the British? Or should the Allied Powers have settled for 30% against the Axis powers? And what when your opponent has no intent, in terms of caring about an outcome or impact on society? And that is an attribute of textualists - they famously don't give a rat's ass about the outcome of their decision on the society. How do you settle for 30% with someone who has no stake in the future?
Hi. I think your comment makes some very interesting points. It certainly got me thinking. You're making a solid point about the 30% rule not fitting all situations, especially historical conflicts like the American Revolution or WWII. But the rule seems valuable in many contexts. Consider drafting of the US constitution. The framers made numerous compromises, like the Great Compromise, to achieve a functional governmnet. It wasn't about everyone getting exactly what they wanted but finding enough common ground to move forward. Even in daily lives, we still experience this. For exampe, it sucks paying 20-40% of your wages to taxes (depending on where you live,) but there are benefits in return, like public services and infrastructure. It's not getting everything wanted, but it's a compromise. And we can see xamples of this in history too. During WWII, the allies had to make strategic compromises, such as aligning with the Soviet Union despire significant idealogical differences. This kind of cooperation emobides the essense of the 30% rule. About textualism too, I agree that it overlooks broader societal impacts because it focueses strictly on the text. and integrating considerations of societal impact could provide a more balanced approach. If you can make sense of that, haha. So, while the 30% rule isn't universally appicable, I hope I explained my point of view showing the 30% rule has a useful framework for understanding how to compromise. Best, Will edit: fixed spelling errors.
@@William-Waite I absolutely agree that the 30% rule is an extremely pragmatic approach. What I was trying to point at was - how do you make it work with people who have ideological or other rigid viewpoints and refuse to compromise? How do you negotiate with a fellow judge who believes in the dogma of textualism over all else? And in trying to work with them, are you deluding yourself of the danger it poses? As an interviewer at another event asked Justice Breyer - previous swings of the Court to left or right have reflected changes in underlying society but this right wing swing has defied underlying social consensus on issues like gun control and abortion, just to name probably the most famous two. In the age of Instagram, why do our Congress and the Supreme Court seem to come across as medieval institutions that were designed to bring misery and conflict to their people? Do you remember the last time a piece of legislation or ruling from the court was hailed across the nation as a victory by all? A Moon landing moment. Sorry, I know it got long winded, haha but I am saying - there is something deeply rotten that is beyond the strength of the 30% approach to fix.
No doubt he's a very nice man. But he feels the Constitution malleable. Not sure why anyone would ever think that. Words were written down and they had meanings. Why would a judge ever think he's their job to change what the words meant when they were written?
Because it's supposed to be a living document. Honest question: How can the Constitution that was written hundreds of years ago when things in society were drastically different be useful if only the literal meanings of the words and how they applied then are used to decide the issues of today's society? What Justice Breyer is saying is not too far from what I think you might mean. If the Founders advocated for a more equitable society even though it was not the reality of when the Constitution was originally written, which imbued the meaning of the words including, "We the People", then we can't simply look only at the words but also their purpose and intent. As Justice Breyer points out, women and slaves were not part of the democratic process nor were people of color when the Constitution was written. A textualist might perhaps argue that since these groups were not part of the intent of the Framers, then women and people of color shouldn't vote today. The world changes. That's the main point. We need to look at what was the purpose and intent of the statutes and the Constitution in addition to the literal meaning of the words such as what does "judicial" or "executive" mean. We're in 2024. How are we supposed to have a functioning society if we try to use the purpose, thinking and intent from a society that no longer exists?
@@camiliafuentes3509 “supposed to be a living document”. According to who? What or who gives a Supreme Court justice the power to change the meaning of the Constitution? You don’t like what it says? See article 5. See article 1.
@@sj6986 in the name “judge”. In the meaning of Marbury v. Madison. Stare decisis. They’re not legislators, they’re judges. Why do we even write laws if their meanings can just be interpreted at the whim of some future “judge”? Why even have a judicial system? We have a mechanism for changing the constitution and laws. Liberals are just too lazy and want whatever they want when they want it.
I agree the constitution is already a compromise itself. It was not ratified until the conetticute compromise. I think the words mean what they mean. If we want to change it we should use the amendment process.
In other words, according to Stephen Breyer, "WE DON'T NEED NO STINKING CONSTITUTION!".
A GREAT TALK
Thank you for segment puts reality into perspective. 🇺🇲🇺🇲🇺🇲🇺🇲. Judging individuals some uneducated rule of law in position not earned but bought. Fair and impartial in judgements. Leave out personal emotions.
Abraham Lincoln Gettysburg Address: The sacrifice of over 50 000 men who lay down their lives in the battle of the Gettysburg declared that the United States had to stand as a country where all men are created equal and should be treated as equal and should be treated as equals.
I like this comment section.
I'm a bit taken aback by Jeffrey's endorsement of Justice Breyer's description of his judicial philosophy as pragmatism? I've always known Justice Breyer to be a living constitutionalist, and there's nothing wrong with the term. Ascribing the name pragmatism to a judicial philosophy seems to me an attempt to re-brand Living Constitutionalists as moderate and the textualists anti-pragmatists. Is it not easier then to infer them to be radicals if they're not pragmatic in their interpretation? I certainly do not imagine Originalists regard Justice Breyer's judicial philosophy as pragmatic. This smells of politics to me. I've always admired Jeffrey Rosen for his commitment to non-partisanship, but I did not get the sense that Originalism was given a fair reading or interpretation by either Jeffrey or Justice Breyer. I've long listened to Justice Breyer speak of the court and law, especially when he would argue with Justice Scalia, but this did not come across as cogent and edifying. Even for Justice Breyer who is known to bounce around, I wish him the best.
" but I did not get the sense that Originalism was given a fair reading or interpretation by either Jeffrey or Justice Breyer". Maybe that's because it should be left to the originalist to give that meaning as neither men belong to that camp. Of course understanding what it is and isn't, I always like to go to one of my favorite scholars Erwin Chemerinsky. Enjoy. ua-cam.com/video/sPPmaijVDu0/v-deo.html
Pragmatism is the term that Scalia would use for it. I'd say it fits. It's not too charged and it's a pretty matter of fact way to describe what it is that isn't a derisive or exalting term in itself. I say that as someone who dislikes the "living constitution" and Breyer's philosophy in general. "Living constitutionalist" is probably a more politically charged way to say it, because it sounds inherently good. Remember Scalia's way of putting it, "it makes me sound like I'm promoting a dead constitution."
@@wingusdingus4958 I wish I could agree, but if Pragmatism is a matter of fact way of describing the philosophy Breyer has championed, then why could we not use the word to describe Originalism? I'm thinking you would say it wouldn't fit. This is what I am pointing to. It simply doesn't fit. I agree with you that Pragmatist is less politically charged, but it is also exalting, in my opinion. I mean, the definition of pragmatist describes so much of what many of us want in a judge, careful and measured. But as a philosophy, it has resulted in massively reshaping the meaning of the Constitution and American culture itself. Breyer's philosophy removes many guardrails on the limits of a judges interpretive power. I just don't see how that is based so much in pragmatism that it deserves the brand. I respect your difference of opinion, however.
@@tekgroove We could not use the word "pragmatism" to describe Originalism because Originalism uses principle above what is pragmatic. Take gun control for example, the principled stance may not be the pragmatic stance. The Originalist could say that gun control is "pragmatic" and has certain benefits, but he would generally disagree on principle with gun control because the second amendment has been applied to citizens forever. The Originalist would say that because of the way the country was organized at its founding and throughout the years that gun control is a pragmatic but unprincipled solution to problems like gun crime or mass shootings or whatever else. (You might disagree that gun control would have positive outcomes, I would. I generally don't think gun control is a good solution, but suppose for the sake of illustration it was a totally positive solution with no downsides, it would still go against the principles which the founding fathers intended.)
I think "Pragmatism" also gives a sense of removing guard rails, when following guard rails would be "unpragmatic". I wouldn't say that "Pragmatism" sounds like you're being careful and measured, to me it gives off a sense of flexibility and doing what you feel is necessary in the moment. These might be things that people want in a judge but it's not necessarily how a judge ought to act, making up interpretations on the fly as it suits the feelings of the day. A judge ought to be almost mechanical in how he does his job, even if the uneducated person might want a judge to impose his own morality when it suits him.
@@wingusdingus4958 Thank you for that. I think I'm seeing more clearly the rationale behind the concepts of pragmatist or principled themselves. It almost sounds like this is being taught to students as a way to understand the rationales behind Originalism or Living Constitutionalist. I find myself still wrestling with the idea of whether either are sound philosophies for interpreting the Constitution. I tend to see strengths and weaknesses in both approaches. I remember Justice Breyer saying once that we citizens wouldn't want to live in this country if the Constitution were interpreted only by Originalists. I always thought he meant that the country wouldn't be as democratic. We wouldn't have had the expansion of civil rights and protections we have been afforded through the interpretive doctrine he so advocated. He may indeed be right about that, if that is what he meant in the first place, but I do believe he and those like him have short circuited the system in a way. States and Congress are losing their ability to effectively govern, and I see a link between this and the expansion of rights we have seen over the last 90 years. When judges can say what the law means, which is just judicial review, but they're source of interpretation is what they believe the law to mean now, judges are really just a vehicle for the beliefs of the present moment. In a weird way, judges are now representing the will of the people via the will of the majority of the court. This basically gets expressed as the will of the people, and unless legislatures have supermajorities, there is little that can be done to change it, unless the court itself reverses. This just isn't the republic we were given. But that's a whole other bucket of fish. Thank you for the clarity of your words.
vERT WISE, TY
Pragmatism is inconsistent with "Rule of Law." The Legislative Branch is responsible for the design, development and maintenance and therefore the meaning of the Laws. SOTU using any other meaning constitutes 'legislating from the bench.' Doing that largely negates the self-correction and self-improvement mechanisms for our body of Laws, thereby doing more long term harm than any short term good it might do. SOTU is responsible for insisting that Congress resolve any ambiguities and conflicts in the body of Laws for which they are responsible i.e. SOTU needs to provide some basic Quality Assurance.
Maybe if legislators understood that it was the job of judges to interpret the words on the paper, they wouldn’t write ambiguous statutes. And if legislators didn’t assume judges would always rule their way because they think courts should be the enforcement mechanism of their policies, they wouldn’t get so mad when courts don’t rule the way they want them to.
They write vague statutes on purpose so they can be widely applied as needed. It's impossible to write a statute for every foreseeable and unforeseeable but applicable context because the world, technology and society is constantly changing. Judges are supposed to use the intent of statutes and then apply it to the case at hand. Legislators can't write specifically to every case that will land before a judge. It is a process to come to consensus to pass legislation. It's vague to it can be useful today and hopefully tomorrow.
I don't agree that the words change meaning overtime.
I do not agree with textualism but at the same time I will nitpick on the Breyer's 30% rule. It works only in some cases especially only when the other side has the same final intent in mind - for example, you are trying to formulate a policy to end homelessness. But would the revolutionaries have agreed for 30% of the US while fighting the British? Or should the Allied Powers have settled for 30% against the Axis powers? And what when your opponent has no intent, in terms of caring about an outcome or impact on society? And that is an attribute of textualists - they famously don't give a rat's ass about the outcome of their decision on the society. How do you settle for 30% with someone who has no stake in the future?
Hi. I think your comment makes some very interesting points. It certainly got me thinking. You're making a solid point about the 30% rule not fitting all situations, especially historical conflicts like the American Revolution or WWII. But the rule seems valuable in many contexts. Consider drafting of the US constitution. The framers made numerous compromises, like the Great Compromise, to achieve a functional governmnet. It wasn't about everyone getting exactly what they wanted but finding enough common ground to move forward.
Even in daily lives, we still experience this. For exampe, it sucks paying 20-40% of your wages to taxes (depending on where you live,) but there are benefits in return, like public services and infrastructure. It's not getting everything wanted, but it's a compromise. And we can see xamples of this in history too. During WWII, the allies had to make strategic compromises, such as aligning with the Soviet Union despire significant idealogical differences. This kind of cooperation emobides the essense of the 30% rule.
About textualism too, I agree that it overlooks broader societal impacts because it focueses strictly on the text. and integrating considerations of societal impact could provide a more balanced approach. If you can make sense of that, haha. So, while the 30% rule isn't universally appicable, I hope I explained my point of view showing the 30% rule has a useful framework for understanding how to compromise.
Best,
Will
edit: fixed spelling errors.
@@William-Waite I absolutely agree that the 30% rule is an extremely pragmatic approach. What I was trying to point at was - how do you make it work with people who have ideological or other rigid viewpoints and refuse to compromise? How do you negotiate with a fellow judge who believes in the dogma of textualism over all else? And in trying to work with them, are you deluding yourself of the danger it poses? As an interviewer at another event asked Justice Breyer - previous swings of the Court to left or right have reflected changes in underlying society but this right wing swing has defied underlying social consensus on issues like gun control and abortion, just to name probably the most famous two. In the age of Instagram, why do our Congress and the Supreme Court seem to come across as medieval institutions that were designed to bring misery and conflict to their people? Do you remember the last time a piece of legislation or ruling from the court was hailed across the nation as a victory by all? A Moon landing moment. Sorry, I know it got long winded, haha but I am saying - there is something deeply rotten that is beyond the strength of the 30% approach to fix.
No doubt he's a very nice man. But he feels the Constitution malleable. Not sure why anyone would ever think that. Words were written down and they had meanings. Why would a judge ever think he's their job to change what the words meant when they were written?
Because it's supposed to be a living document. Honest question: How can the Constitution that was written hundreds of years ago when things in society were drastically different be useful if only the literal meanings of the words and how they applied then are used to decide the issues of today's society?
What Justice Breyer is saying is not too far from what I think you might mean. If the Founders advocated for a more equitable society even though it was not the reality of when the Constitution was originally written, which imbued the meaning of the words including, "We the People", then we can't simply look only at the words but also their purpose and intent.
As Justice Breyer points out, women and slaves were not part of the democratic process nor were people of color when the Constitution was written. A textualist might perhaps argue that since these groups were not part of the intent of the Framers, then women and people of color shouldn't vote today. The world changes. That's the main point. We need to look at what was the purpose and intent of the statutes and the Constitution in addition to the literal meaning of the words such as what does "judicial" or "executive" mean. We're in 2024. How are we supposed to have a functioning society if we try to use the purpose, thinking and intent from a society that no longer exists?
@@camiliafuentes3509 “supposed to be a living document”. According to who? What or who gives a Supreme Court justice the power to change the meaning of the Constitution? You don’t like what it says? See article 5. See article 1.
@@euphegenia and who says it must be treated as a dead document? Why would the living suffer the dead?
@@sj6986 in the name “judge”. In the meaning of Marbury v. Madison. Stare decisis. They’re not legislators, they’re judges. Why do we even write laws if their meanings can just be interpreted at the whim of some future “judge”? Why even have a judicial system? We have a mechanism for changing the constitution and laws. Liberals are just too lazy and want whatever they want when they want it.
I agree the constitution is already a compromise itself. It was not ratified until the conetticute compromise. I think the words mean what they mean. If we want to change it we should use the amendment process.
This guy is a judge not a historian and therefore he's talking in riddles like always.