“Interpreting 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, digital €25.
Stephen Breyer had just taken his first judgeship when a seasoned colleague gave him this advice: If you ever don't like a legal opinion, start by writing an angry response, « sans [vous] prohibit insult”. Then throw it away, and write a text “worthy of a judge”. Forty years later, he continues to follow this rule. As evidenced by his new book, Interpreting the American 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 sum, in which Breyer concentrates the legacy he intends to leave to American legal thought, without imagining the incendiary pamphlet which may be lying around in his basket. To tell the truth, it often comes to the surface, so strong and difficult to conceal, is the sense of urgency that carries the book. Because, appointed in 1994 to the Supreme Court, from which he resigned in 2022 – it was a question of strengthening the progressive minority by allowing the appointment of a younger judge – the magistrate saw it transform into a field of battle, and a battle which touches the very essence of democracy.
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 we must, here, assume a pleonasm: the debates of this court of justice, as significant as the political issues may be, are of a legal nature, and it is on this level that we must analyze them. The ideological divides will emerge all the more clearly.
This is what happens in Interpreting the American Constitution. Stephen Breyer defends a legal doctrine, “intentionalism”, against another, “originalism”, which happens to be the basis of many recent decisions of the Supreme Court. Thus the annulment, in 2022, of the Roe judgment 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 every citizen. Yes, estimated the 2022 judges, but there is nothing to say that the authors envisaged that they would extend to reproductive rights. Therefore, writes Breyer, summarizing their position, “we cannot assert today that [l’amendement] protects these rights ».
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