Free Making Our Democracy Work by Stephen Breyer

resolving serious differences through law, hence following a court’s conclusion even when it is unpopular. Furthermore, experience abroad, say in pre–World War II Europe, makes clear that majorities can become tyrants, and it thereby underlines the importance of making effective the Constitution’s efforts to protect minorities and to protect individual liberty—even when their enforcement is unpopular.
    But that is not the end of the matter. The examples also show that the public’s trust cannot be taken for granted. Public trust does not follow automatically from the existence of a written constitution. It must be built, and once built, it must be maintained. To maintain the necessarypublic confidence in the Court’s decisions, each new generation has certain obligations. It must learn how our constitutional government works, become aware of its history, be encouraged to participate in the democratic process, and observe the preceding generation as it builds on those public customs.
    This must happen primarily through civic education. But the Court too has responsibilities. Abraham Lincoln, after reading the
Dred Scott
decision, said he doubted that the public was always obligated to follow the Court’s “last word.” To help maintain the public’s confidence, the Court must exercise its power of judicial review in a manner that honors the lessons of the past. Part II will examine some of the ways in which I believe the Court itself can help accomplish this difficult but critical task.

PART II
D ECISIONS T HAT W ORK
     
    T HE C OURT HAS A SPECIAL RESPONSIBILITY TO ENSURE THAT the Constitution works in practice. While education, including the transmission of our civic values from one generation to the next, must play the major role in maintaining public confidence in the Court’s decisions, the Court too must help maintain public acceptance of its own legitimacy. It can do this best by helping ensure that the Constitution remains “workable” in a broad sense of that term. Specifically, it can and should interpret the Constitution in a way that works for the people of America today. Here I explain why and how it can do so.
    Part II discusses what the Court must do to deserve and to maintain the public trust it has earned. I argue that the Court can best fulfill this obligation through rulings and interpretations that help the Constitution work in practice. This requires applying constant constitutional principles to changing circumstances. I argue that in making difficult decisions, the Court should recognize and respect the roles of other governmental institutions—Congress, the president, executive branch administrators, the states, other courts—and it should take account of the experience and expertise of each. I describe several distinct approaches, each specific to a particular institution, that I believe will help the Court build productive governmental relationships—but without the Court’s abdicating its own role as constitutional guardian.
    In addition, I argue that the Court should interpret written words,whether in the Constitution or in a statute, using tools that help make the law effective in practice. Judges should use traditional legal tools, such as text, history, tradition, precedent, and purposes and related consequences, to help find proper legal answers. But courts should emphasize certain of these tools, particularly purposes and consequences. Doing so will make the law work better for those whom it affects.
    Taken together, the following chapters describe a set of pragmatic approaches to interpreting the law. I do not argue that judges should decide all legal cases pragmatically. Rather, I suggest that by understanding that its actions have real-world consequences and taking those consequences into account, the Court can help make the law work more effectively and thereby better achieve the Constitution’s basic objective of creating a workable democratic government. At the same