Scalia vs. Breyer: Differences in Constitution and Statutory Construction

Justice Scalia’s decision-making process could be summed up in two words: text and tradition. Scalia is wary of any departure from the original meaning of the Constitution’s text, strongly criticizing Supreme Court decisions that he believes demonstrate an activist judiciary rather than a neutral decision-making branch of a democracy. Scalia “argues that primacy must be accorded to the text, structure, and history of the document being interpreted and that the job of the judge is to apply either the clear textual language of the Constitution or statute if the text is ambiguous, yielding several conflicting interpretations, Scalia turns to the specific legal tradition flowing from that text to what it meant to the society that adopted it.

In the case of Schwarzenegger v Entertainment Merchants Association, Justice Scalia will most likely find that California’s law to censor patently offensive video games for minors is unconstitutional, and reject California’s assertion that the court should use a new Ginsberg standard rather than the strict scrutiny standard when evaluating the Bill in dispute, because his textualist approach would be highly inhospitable to California’s arguments.

On the other hand, Stephen Breyer promotes a highly specialized Constitutional philosophy known as the living constitution or evolutionist approach. In his book Active Liberty, he illustrates this approach to constitutional interpretation, which focuses primarily on making America’s experiment in democracy functional by giving a voice to the people through the collective opinions and judgments of the nine unelected Justices of the Supreme Court.

The notion of active liberty allows not only a democratic boost of power to American citizens by giving their convictions influence over judges’ interpretation of the Constitution, but also focuses practically on the consequences that rulings have for the American people and their ability to engage in democratic self-governance. Additionally, Breyer defends The Living Constitution approach and adds a new theoretical framework to propel the evolution of Constitutional interpretation a democratically-minded approach when interpreting a legal text will yield better law; law that helps a community of individuals democratically find practical solutions to important contemporary problems.