Thursday, December 07, 2006

Justices Breyer and Scalia on interpretive methodology

Justices Breyer and Scalia
The American Constitution Society and the Federalist Society cosponsored a debate between Justices Stephen Breyer and Antonin Scalia. Jan Crawford Greenburg of ABC News moderated A Conversation on the Constitution: Perspectives from Active Liberty and A Matter of Interpretation. Justices Breyer and Scalia discussed the interpretive methodologies described in their books, Active Liberty: Interpreting Our Democratic Constitution and A Matter of Interpretation: Federal Courts and the Law.

Nine hundred lawyers, students, judges, and journalists attended this December 5 event. Thanks to a video feed supplied by the ACS, the Jurisdynamics Network now brings this event to you at Ratio Juris and Jurisdynamics.

University of Minnesota law student Jesse Mondry, who brought this item to my attention, recommends an exchange that takes place roughly 17 minutes into the debate. Justice Breyer identifies six tools that judges use in statutory interpretation:
  1. The text of the statue
  2. Legislative history: how those words got into the statute
  3. Statutory tradition: how those words been used before and after this statute
  4. Precedent
  5. The purpose of the statute
  6. Practical consequences relevant to the purpose of the statute
According to Justice Breyer, some judges stress the first four tools and ignore the last two. Justice Scalia, by his own admission, eschews resort to statutory purpose and consequences, believing that these tools invite subjective judgment. Justice Breyer responds that judges who resist purpose and consequences are not avoiding subjectivity, but rather judicial responsibility.

Update, December 8, 2006
The Federalist Society has now posted additional audio and video options for this event. The embedded player at right offers simple streaming audio of A Conversation on the Constitution: Perspectives from Active Liberty and A Matter of Interpretation.


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