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Supreme Court justices Antonin Scalia and Stephen Breyer are legal opposites, but by no means opponents. That became clear as they testified before a Senate Judiciary Committee last week. Among the topics of discussion was the granddaddy of all legal debates: how to interpret the U.S. Constitution.
Justice Scalia is a staunch conservative, what he calls an "originalist." He believes judges should determine the framers' original intent in the words of the constitution, and hew strictly to it.
On the other hand, Justice Breyer is often called a liberal, or a pragmatist. He believes in what he calls the "living Constitution," the idea that the values outlined by the framers must be molded to apply to our modern society.
In a rare moment, the two justices appeared before the Senate Committee Wednesday for a hearing about the role of judges under the Constitution. For one thing, Breyer said, every judge has the same challenge in every case.
"The hardest problem in real cases is that the words 'life,' 'liberty' or 'property' do not explain themselves. Nor does the freedom of speech say specifically what counts as 'the freedom of speech,'" he said.
Especially in this new century, Breyer said, the freedom of speech and the right to privacy are constantly shifting, as modern forms of communication flourish. Breyer said he searches the Constitution for the underlying values, which he calls "ancient values."
"Trying to apply this Constitution — with those values underlying the words — to circumstances that are continuously changing is not something that can be done by a computer," he said. "Neither of us thinks that. No one thinks that, and therefore it calls for human judgment."
That's the idea of the "living Constitution" — this set of ancient values that grows and stays relevant through time. It's an idea that makes Scalia really uncomfortable.
"I have no problem with applying ancient values as they were understood at the time to new modern circumstances. Originalism doesn't mean that the radio is not covered by the First Amendment," Scalia said, "but what originalism suggests is that as to those phenomenon that existed at the time, the understanding of the society as to what the Constitution prohibited — at that time — subsists."
Scalia said he tries to figure out how the framers themselves understood the rights they outlined, and then carry those forward to today. Anything beyond that, he said, would be drafting new rights into the Constitution.
"I don't trust myself to be a good interpreter of what modern American values are. I have very little contact with the American people, I'm sorry to say. You do, and the members of the House probably even more," Scalia said. "So if you want to keep the Constitution up to date with current American values, you ought to decide what it means, and you can kiss us goodbye."
Then Breyer actually helped Scalia make an argument, explaining Scalia's worry that Breyer will end up substituting what he thinks is right for what the Constitution actually says.
"What I say is, yes, you are right about that — and all I can do is be on my guard, write my opinions, try to look to objective circumstances," Breyer said, "and I see the opposite danger — the opposite danger is called rigidity. The opposite danger is interpreting those words in a way that they will no longer work for a country of 308 million Americans who are living in the 21st century — work in the way those framers would have wanted them to work had they been able to understand our society."
Then, in a moment of remarkable collegiality, the liberal justice prompted Scalia to make an argument Breyer knew would trump what he had just said. He reminded Scalia about a familiar joke.
Two old friends are camping, Scalia said. When a great, big grizzly bear comes after them, the slower, pudgier friend says they will never outrun the bear. The friend running in front says, "I don't have to outrun that bear. I just have to outrun you."
"It's the same thing with originalism — I just have to show it's better than his [idea]," Scalia said.
It was clear the two justices had debated this hundreds of times. Wednesday's argument just happened to take place before a group of powerful senators. Because of that, the session became a kind of master class in the philosophy of law — and the art of "comity."