Breyer lectures on "originalists"

Justice Stephen Breyer's recent presentation on constitutional and statutory "originalists" can now be found online -- "Breyer rebuts 'originalists' in Tanner Lecture," Harvard Law Today, Jan. 20, 2005).

Justice Breyer emphasizes that  "[I]ncreased emphasis upon the Constitution's participatory objectives can help bring about better law."  He goes on to explain why the "literalist" approach (whether as "textualists" for statutes or "originalists" for the constitution) is unsatisfactory.   Among other reasons, Breyer notes (1) that originalists judges "cannot appeal to the Framers themselves in support of their interpretive views;"  (2) that judges who reject literalism do not necessarily open the door to subjectivity; (3) that subjectivity "is a two-edged criticism, which the literalist cannot escape":

"The literalist's tools -- language and structure, history and tradition -- often fail to provide objective guidance in those truly difficult cases about which I have spoken."

(4) literalists approaches are not more likely to produce clear, workable legal rules; and (5) "textualist and originalist doctrines may themselves produce seriously harmful consequences -- outweighing whatever risks of subjectivity or uncertainty are inherent in other approaches":

"Literalism has a tendency to undermine the Constitution's efforts to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves effectively.  Insofar as a more literal interpretive approach undermines this basic objective, it is inconsistent with the most fundamental original intention of the Framers themselves."