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This presents an almost opposite viewpoint to that proposed by Antonin Scalia’s book (see review in this section). The purpose of the Constitution is not to solve all our problems, according to Breyer, but to provide guidance for how our laws should be written and how we should conduct ourselves as a people. It is the role of our government – backed by our courts – to base their actions on the ongoing changes in values and understanding of our world that are reflected in our society. Examples might include the elimination of segregation and child labor laws as our society began to find these practices unacceptable, or newer safeguards protecting internet privacy. “Ideally, in America, the lawmaking process does not involve legislators, administrators, or judges imposing law from above. Rather, it involves changes that bubble up from below. Serious complex legal change is often made in the context of a national conversation involving, among others, scientists engineers, businessmen and women, the media, along with legislators, judges and many ordinary citizens whose lives the new technology will affect.” (P 70-71) Relying only on the text of our laws – divorced from a familiarity with our evolving sense of priorities – can lead us away from the intent of our lawgivers. “…overemphasis on text can lead courts astray, divorcing law from life – creating law that harms those that Congress meant to help. And it explains why a purposive approach is more consistent with the framework for ‘delegated democracy’ that the Constitution creates”. (P 85) Perhaps most importantly, Breyer emphasizes that it is the responsibility of individuals – hopefully trained by our educational system – to make our country work based on the constructive dialogue employed by our founders. It is up to our legal system, including our courts, to step in where people cannot work out their differences or the odds are stacked by the powerful against those with little power and equal protections are needed. “…the Constitution is not a document designed to solve the problems of a community at any level – local, state, or national. Rather it is a document that trusts people to solve their problems themselves. And it creates a framework for a government that will help them do so…” (P 134)

COMMENT

Breyer’s view that Americans must be involved in monitoring and guaranteeing their liberty is compatible with the view of the American Values Focus Group (see our Position Statement). This can be done by individuals and the many non-government monitoring groups that represent people. Government is an expression of the popular will in many areas, such as civil rights, and government pools our resources to create what we cannot create as individuals: roads, schools, bridges, permit processing, etc. Laws – and the courts that interpret them – are needed in those areas where people are unable to work together to resolve issues based on mutual respect and respect for our environment, or where the odds are stacked for the powerful against the individual.