|Oh, the places you'll go with a practical|
approach to judicial interpretation.
Thus, the Court can and should take account of purposes and consequences, of institutional competences and relationships, of the values that underlie institutional collaboration, and of the need to assert constitutional limits.
Similarly, the expressive values underlying the Eighth Amendment's prohibition of "cruel and unusual punishments" suggest that today the amendment would prohibit flogging even if many eighteenth-century Americans thought flogging was neither cruel nor unusual.
Breyer's book is a prolonged attempt to respond to originalism. Should judges merely construe the words of the text, or should they consider other factors? Are judges logicians or are they problem-solvers?
Under Breyer's view, they are problem-solvers; as problem-solvers, they should answer legal questions under a practical approach, taking into consideration legislative intent, the purposes and goals behind a statute, and the respective roles of different institutions within the government. Why should we consider legislative intent? Because the intent behind the law is valid interpretive evidence. For example:
Does a friend who says 'all bicycle shops carry water bottles' mean to include secondhand bicycle shops? Context revealing a speaker's purposes, not a dictionary that explains a word's meaning, provides the necessary help here. Sam's mother tells him, 'Go to the store and buy some ice cream, flour, fruit, and anything else you want." It is context, not a dictionary, that will help us learn whether Sam's mother has given him permission to buy fifteen comic books.
I find this analysis to be pretty compelling. Language is complicated, and our understanding of it is not limited to dictionary definitions. When we interpret what a speaker is saying, we do not rely only on the plain-meanings of his words, we also rely on contextual clues. And, though we may not necessarily assume an author's intent is absolutely determinative, we nonetheless pay attention to what he was trying to say. So it is that we do care that Heidegger was a Nazi when we read Being and Time, though we do not necessarily assume that Being and Time is a Nazi text.
Breyer also places much emphasis on the respective roles of different institutions within our Constitutional scheme. Administrative offices are thought to possess a special expertise; so, they're entitled to a degree of deference in their fields (who knows more about the environment, the Environmental Protection Agency or an Article III judge?).
Unfortunately, I read this book 6 months ago, so my recall...is not great. I'll conclude with this: Breyer's book is aimed more for a general audience (where Scalia's is aimed more for a legal/academic audience); nonetheless, I found Breyer's argument to be more convincing. Still, Breyer's analysis lacks the persuasive punch of Scalia's. I mention this last point because, insofar as we need a liberal judicial theory to counter-balance originalism, Breyer's theory is insufficient. It doesn't have the rhetorical simplicity of originalism.