Breyer Misses Miracle and Brilliance of the Constitution

RUSH: Stephen Breyer, a sitting US Supreme Court justice, appeared on a Sunday television show. I find that, by itself, fascinating. This isn’t done. They may sit for an interview now and then, print interviews in a legal journal, may go make a speech but to go on a Sunday talk show? Not common. Stephanopoulos said to Justice Breyer — and this is the justice, by the way, that thinks: If we have to go to Mars to find law that we agree with, do that. He doesn’t believe we should be constrained by the boundaries of US law nor the Constitution. Stephanopoulos says, “Probably the justice most known for textualism, originalism, is Justice Scalia, and says, ‘Listen, we have to steer clear of intent. We have to steer clear of looking at consequences. Consequences are not our role. We have to pay attention to the text.’ Now, your book, Justice Breyer, is looking at a very different situation.”
BREYER: It does look in a different direction. But the main point of the book is to tell, people who would like to read it, that basically when judges decide cases — not all, but many — they must look back to basic purposes and consequences. Those aren’t the only things, but I want to explain why I think it’s necessary to do that, and that means that I have to explain originalism, textualism, why that doesn’t, in my opinion, work very well.
RUSH: So the guy is out hawking a book. Well, that’s just hunky-dory. That’s just peachy keen. Nothing says he can’t do it, but you just wonder about the propriety of it all. So he says here, “Originalism? Textualism? That doesn’t work very well.”
You might say, “Well, why doesn’t it work very well?” Here’s what he says.

BREYER: Because in close cases, when you take a look at history — history doesn’t tell you, the people who wrote the Constitution really didn’t think that there would be an Internet. They went to Philadelphia [sic– Indepencence] Hall in carriages. They went there with horses. They didn’t go there in automobiles. They thought the commerce clause would apply in the future, but not just for horses, and they didn’t dream of automobiles; they didn’t dream of television, and they didn’t dream of Internet, computers, all the things that affect our privacy, for example. So there’s not going to be a way to look back and say, “What did Thomas Jefferson say about the application of the First Amendment to this particular instance?” or to most of modern society where you’re talking about develops that didn’t then exist.
RUSH: This is so sad. This is so sad. That is the miracle and the brilliance of the Constitution. It does just that. It is the Constitution. Just as Breyer may think that you can’t go back and interpret the original intent, by the same token, Mr. Justice, you can’t tell us what they would have intended, which is what this view seeks to do. It seeks to tell us what they would have intended had they envisioned automobiles or the Internet or computers or some such thing. The miracle and the brilliance of the Constitution is that it does. It’s the glue that has kept this country together by being loyal to it, by having fealty to its original intent — and what is this business of Justice Breyer appropriating the right to enumerate powers for people? Anything not in the Constitution is enumerated. They allowed for this. They allowed for things that they didn’t mention to be dealt with in specific ways, and you will not find in the Constitution where the Founders wrote, “And, by the way, the things that we didn’t think of here? The Supreme Court gets to decide.” They didn’t say that. They didn’t even say the Supreme Court determines the constitutionality of laws. The court decided that itself in Marbury vs. Madison. The big fear and the longtime concern of the court is that it’s nine lawyers who wear black robes, and this is a lot of power they’ve given themselves to determine the constitutionality of things, which is not in the original intent; it’s not in the Constitution.
Well, if they can amass that kind of power and get egos the size of the country in terms of how they view their own importance to the future, it’s no wonder that you get such bastardized rulings that have come out of these people, and of course this doesn’t even talk about the states and their role in enumerated powers or enumerated rights. So it’s troubling to hear this, especially when he’s out there now selling a book. I watched Dianne Feinstein this morning outside her palatial mansion in Pacific Heights in San Francisco, and she was being asked about Harriet Miers, and she said, “Well, I don’t really know much about Harriet Miers.” So she started a recitation of what’s wrong with the court. She said her big concern, other than Roe vs. Wade, which is her #1 concern, her big concern is the commerce clause. She says, “The Supreme Court is telling us where we can and can’t legislate,” and then she brought up the commerce clause. She said, “This court told us that Congress cannot rule that you can’t have a gun a thousand feet or a thousand yards, whatever it is, from a school. Well, she said most Americans look at that and that’s silly. Do we want guns within a thousand feet of schools?”
Senator, if you don’t want guns a thousand feet from schools, go to the local area, go to the state and have them deal with it, because the commerce clause does not give the US Congress the right to pass that law. The Supreme Court was right. Interstate commerce! This is where these people who have an expansionist view will look at the Constitution and say, “Well, they would have never envisioned there would have been guns outside all these schools. They of course would understand that we’re trying to limit this.” No, they didn’t. They covered it clearly in the Constitution. Interstate commerce, interstate commerce is that commerce that goes on between the two states — and that’s what the commerce clause is all about, or between more than one state, not just two, but more than one. But for Congress to say that a school district in California cannot have guns within a thousand feet of the school, the commerce clause is being illegally applied there. The Supreme Court was right to overturn that. She doesn’t get it. “Well, that’s silly. We have to understand how silly that is, and Congress has the right to pass,” not according to the Constitution. It works when it’s originally applied, folks.
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RUSH: Let’s do nine and ten consecutively here. Start with #9.

BREYER: Because in close cases, when you take a look at history — history doesn’t tell you, the people who wrote the Constitution really didn’t think that there would be an Internet. They went to Philadelphia Hall [sic — Independence Hall] in carriages. They went there with horses. They didn’t go there in automobiles. They thought the Commerce Clause would apply in the future, but not just for horses, and they didn’t dream of automobiles; they didn’t dream of television, and they didn’t dream of Internet, computers, all the things that affect our privacy, for example. So there’s not going to be a way to look back and say, “What did Thomas Jefferson say about the application of the First Amendment to this particular instance?” or to most of modern society where you’re talking about develops that didn’t then exist.

RUSH: Even Stephanopoulos has recognized this is bogus, but before I get to the next bite, this business of privacy? You know, that right’s not specifically enumerated in the Constitution, judge. But to think that the framers had no concept of it, to think because they didn’t have television and they didn’t dream of it, they didn’t know about the Internet? Go back and look at the print media when these guys were writing the Constitution. I’m going to tell you that the print media was all tabloid. Well, the vast majority of it was. You think the media today is low down dirty rotten? Folks, the things — William Safire’s written a great book about this, a novel that’s historically accurate, about one of these journalists named James Callender, C-a-l-l-e-n-d-e-r. These people were vicious. The Founders new full well what they were dealing with and yet they still created a free press. That’s why the document is brilliant. It’s why it’s a miracle. Anyway, Stephanopoulos, he realizes that this idea that Breyer is talking about is not even in the Constitution. The idea: Well, we don’t know what they were thinking so we have to assume for them. He says, “I’m still having trouble figuring where specifically the idea you just talked about is based in the Constitution.”
BREYER: It’s based in Articles 1 through 7. They created —
STEPHANOPOULOS: That’s all, one through seven?
BREYER: Yeah. That’s the Constitution, and the rest is the amendments — and what are the first three words of the Constitution?
STEPHANOPOULOS: We, the people.
BREYER: We, the people, that’s right. We, the people, not we the states. It’s not just omitted but it’s “we the people” that are creating the document, and what kind of a document is it? It is a document designed to create institutions that would allow the people themselves to decide what their communities, what their states, what their towns, what their national government will be like. What rules do they want? What practices do they want to govern themselves?
RUSH: Well, then, judge, why don’t you vote to overturn Roe vs. Wade on the very basis of what you just said because you’re denying the people their right! You are not the people! That’s the point. You’re not an elected body. You serve lifetime terms. There’s no way of redress when people disagree with what you’re doing. The court has appropriated all of these decisions from the people. It’s incredible — and let me give you the outgrowth. We’ve the Kelo decision, eminent domain decision. Eeeeverybody was outraged about this. Try this. This is from the Washington Times. Mr. Snerdley, this is happening barely — from where we sit, as the crow flies — five miles north of here. “Florida’s Riviera Beach is a poor, predominantly black, coastal community that intends to revitalize its economy by using eminent domain, if necessary, to displace about 6,000 local residents and build a billion-dollar waterfront yachting and housing complex. ‘This is a community that’s in dire need of jobs, which has a median income of less than $19,000 a year,’ said Riviera Beach Mayor Michael Brown. He defends the use of eminent domain by saying the city is ‘using tools that have been available to governments for years to bring communities like ours out of the economic doldrums and the trauma centers.’
“Mr. Brown said Riviera Beach is doing what the city of New London, Conn., is trying to do and what the U.S. Supreme Court said is proper in its ruling June 23 in Kelo v. City of New London. That decision upheld the right of government to seize private properties for use by private developers for projects designed to generate jobs and increase the tax base.” So tell me, Justice Breyer, where is it in this ruling, in the Kelo ruling, that the people have anything to say about what’s happening? You’ve just empowered government here with this ruling. He voted for Kelo. So to listen to this here talk about, “Well, the Founders didn’t account for this; they didn’t account for that. It’s written by We the People.” You are not “We the People.” That’s the whole point. The judicial branch is not We the People, and if you go read the Federalist Papers and if you go read the Constitution, you will find how very little was said about the court, in terms of its importance, at least as the court has amassed importance for itself. So you’ve got 6,000 local residents right up the road from here in Riviera Beach– poor, predominantly black — and from the sounds of it the mayor wants to sweep them away somewhere, and put in a big marina, get a bigger tax base, revive the economy from out of the doldrums up there, and he’s citing Kelo as his reason for doing it.
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