In a forthcoming book, retired justice Stephen Breyer outlines his case against both textualism and originalism. Titled “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” Breyer questions the efficacy of such interpretive legal theories. He proclaims, “Those theories will not bring about the advantages that their advocates hope to achieve. They will not bring certainty to the law.”
According to Breyer, the so-called certainty and predictability, promised by advocates of textualism and originalism, are likely far-fetched. Textualism, specifically, gives rise to arguments centered on statutory interpretation, often leading to unprecedented legal intricacies.
Similarly, originalism, particularly in its strictest form, tends to tether legal interpretation to historical context, leaving little room for the evolution of societal norms and values. Borrowing from his experience as a Supreme Court Justice, Breyer argues that rigid adherence to such theories may potentially impede the law’s capacity to reflect and adequately address contemporary issues.
For a comprehensive understanding of Justice Breyer’s argument, delve into his book or read the article published by the National Law Journal. Please note, access may be limited due to a paywall.