“Interpretation of the American Constitution. The Letter or the Spirit” (Reading the Constitution. Why I Chose Pragmatism, Not Textualism), by Stephen Breyer, translated from English (United States) by Patrick Hersant, ed. Odile Jacob, 368 p., 39 euros, digital 25 euros.
Stephen Breyer had just taken his first judgeship when an experienced colleague gave him this advice: If you ever don’t like a legal opinion, start by writing an angry response. ” without [vous] prohibit insult”. Then throw it away and write some text. “worthy of a judge”. Forty years later, this rule continues. As his new book demonstrates, Interpretation of the US Constitutionof which the least we can say is that, through his thoroughness, his calm, his refusal to treat the adversary as an enemy, he appears on every page. “worthy of a judge”.
However, it is difficult to read this masterful summary, in which Breyer concentrates the legacy he intends to leave to American legal thought, without imagining the incendiary pamphlet that may be in his basket. Truth be told, what often comes to the surface, so strong and hard to hide, is the sense of urgency that the book carries. Because, appointed in 1994 as a member of the Supreme Court, from which he resigned in 2022 – it was about reinforcing the progressive minority by allowing the appointment of a younger judge – the magistrate saw it transformed into a battlefield, and a battle that touches the essence of democracy itself.
There is what we all know: the partisan imbalance in the composition of the Court. Of nine judges, six were appointed by Republican presidents, including three by Donald Trump. But here we must assume a pleonasm: the debates of this court of justice, no matter how important the political questions are, are of a legal nature, and it is at this level that we must analyze them. Ideological divisions will emerge even more clearly.
This is what happens in Interpretation of the US Constitution. Stephen Breyer defends one legal doctrine, “intentionalism,” against another, “originalism,” which turns out to be the basis for many recent Supreme Court decisions.. Thus the annulment, in 2022, of the Roe ruling vs. Wade, who had protected the right to abortion since 1973. This ruling was based on the Fourteenth Amendment to the Constitution, which guarantees freedom and equality to all citizens. Yes, the judges estimated in 2022, but nothing says that the authors anticipated that they would extend to reproductive rights. Therefore, Breyer writes, summarizing his position, “We cannot affirm today that [l’amendement] protect these rights ».
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