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Published 15 November 2001 (word count: 753)
Oh those kooky, cut-up Founding Fathers of ours. They had their fingers crossed, chuckling and winking all the while dipping quill pens made from endangered species’ feathers into inkwells and scribbling graffiti like “Congress shall make no law … abridging the freedom of speech …”
That, according to an AP story, is the way Supreme Court Justice Stephen Breyer apparently pictures the merry ol’ Constitution writing party. Addressing a roomful of yet more lawyer wannabes at New York University School of Yet More Lawyer Wannabes, Hizzonor cautioned that “the framers did not say specifically what factors judges should emphasize when seeking to interpret the Constitution’s open language.”
Just how “open” is language like “Congress shall make no law … abridging the freedom of speech …”?
His answer to that? The Constitution “does not define the freedom of speech in any detail.”
Just how detailed does “Congress shall make no law … abridging the freedom of speech …” have to get?
Based on a long line of Breyeresque thinkers, the answer is “infinitely detailed.” The concept of “speech” has been parsed unto farce by so many Legal Regals that “speech” no longer exists. We can’t sputter a sibilant syllable without it being defined as personal speech, religious speech, political speech, commercial speech, obscene speech, or hate speech, with ever more modifiers piling on even as we, er, speak.
This fine kettle of Babel is just dandy with His Justiceness Stephen Breyer. Quoting from the AP piece again: “The men who wrote the Constitution left many important areas open to interpretation.”
Let’s hope the Ten Commandments never get thrown into this interpretive Breyer patch. Take Thou Shalt Not Number Ten, for example, which already has way too many variations floating around out there in Internet Land. The condensed version, for those of you who haven’t read that far, goes approximately like this: “Thou shalt not covet thy neighbor’s house, wife, manservant, maidservant, ox, ass, nor any thing that is thy neighbor’s.”
Now couple that with yet another Breyer Deep Thought from the same article: “those who favor a literal interpretation of the Constitution aren't necessarily following the framers’ wishes.” (Sound familiar? Sound sorta like, “those who favor a literal interpretation of Florida butterfly ballots aren't necessarily following the voters’ wishes?”) Now substitute “Ten Commandments” for “Constitution” and add a capital F to “Framer” and the Breyers of the world are in business.
Breyer can’t covet his neighbor’s wife but nothing literally enjoins him from coveting his neighbor’s over-sexed sixteen-year-old daughter in her see-through crop top and her crotch-tight cutoffs. And gender equality disqualifies her as being any “thing” that is thy neighbor’s. Or, he can simply covet Guido’s wife since Guido lives across town and therefore isn’t his “neighbor.” And, ladies, there’s nary verb nor vowel against coveting thy neighbor’s husband. We mustn’t, After all, favor a literal interpretation of the Framer’s wishes.
Since a noted lawyer famously took the Breyer Beware approach of interpreting what “is” is, I wondered how Breyer himself might handle this modern controversy. So I moused on over to the Legal Information Institute website. Curiously, in one written opinion after another, Sir Breyer uses “is” just as though “is” actually is “is” rather than a word that can be Clintonized at will.
But an even curiouser curiosity leapt off my monitor pixels from Our Hero’s dissent in Tome v. United States (we all remember that one) in which he opines, “I would read the Rule's plain words to mean exactly what they say.”
What? Never mind the context. Are we all getting the same drift on this one? When considering Federal Rule of Evidence 801(d)(1)(B), as he is herein, words mean exactly what they say. But when contemplating the Constitution of the United States of America, there are “many important areas open to interpretation.”
Of course, judges like Breyer don’t interpret the Constitution. They interpret interpretations of interpretations of interpretations of the Constitution until they get what they, not the framers, want. Let’s return the favor and interpret Breyer for a change: “That damned old Constitution just keeps getting in the way of establishing the glorious Totally Politicized States of America.”
The Constitution wasn’t created as a stage for the Supremes to show off their interpretive vocalizing. It was created to protect individual rights. Based on the plain words I’ve exchanged with others of my ilk, libertarians don’t want the Constitution interpreted. We just want it enforced. Is that asking too much?
For Breyer and his ilk, apparently it is.
- by Garry Reed
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