Free Making Our Democracy Work by Stephen Breyer Page A

time, the Court can help maintain the public’s confidence in the legitimacy of its interpretive role. This point, which returns full circle to Part I , is critical.

Chapter Seven

The Basic Approach
     
    M AINTAINING PUBLIC ACCEPTANCE requires a Constitution that works well for the people today. The Court can help achieve this objective in two ways. First, the Court should reject approaches to interpreting the Constitution that consider the document’s scope and application as fixed at the moment of framing. Rather, the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances. The Court must consider not just how eighteenth-century Americans used a particular phrase but also how the values underlying that phrase apply today to circumstances perhaps then inconceivable. Second, when the Court interprets the Constitution, it should take account of the roles of other governmental institutions and the relationships among them.
    The Constitution must work in both senses, that is, the Court must interpret the law in ways that help that document work well for Americans, and the public must accept the Court’s decisions as legitimate. But this book is essentially about the Court. Thus this part will focus on how the Court might go about producing workable interpretations of the law. (Before continuing to read this part, the reader should now turn to Appendix B and review how the modern Court works.)

A LTERNATIVE A PPROACHES: O RIGINALISM , P OLITICS , S UBJECTIVE P REFERENCE
     
    S OME JUDGES BELIEVE the best way to interpret the Constitution, while building the public’s confidence in the objectivity of the Court’s decisions, lies in an approach called originalism. The judges who follow this approach look to history to discover what those who wrote the Constitution most likely thought about the content and scope of a constitutional phrase, and they interpret the phrase accordingly. The Sixth Amendment, for example, says that in “criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” Does this phrase mean that a child witness, testifying against an accused abuser, must face the accused directly in court—despite the trauma this may cause the child and the potential that he or she will be intimidated by the accused’s presence? Does it mean that a prosecutor cannot introduce into evidence the dying statement (obviously made out of court) of a murder victim identifying the accused? 1
    An “originalist” judge looks to history to find not just the basic values that underlie this Sixth Amendment provision but also, say, descriptions of eighteenth-century trial practice that will answer these questions by supporting one view or another of the confrontation clause’s present-day requirements.
    Originalists hope that judges will find answers to difficult constitutional questions by proceeding objectively, almost mechanically, to examine past historical fact. An objective approach will reassure the public that the Court’s interpretation reflects what history shows to have been the framers’ detailed intentions, not the judge’s own. And the Court will thereby build and maintain continued public support for its decisions.
    This historical approach, however, suffers serious problems. For one thing, it is less “objective” than one might think. When courts consider difficult questions of constitutional law, history often fails to provide specific objective directions. The legal question at hand may be narrow. Relevant historical material may be difficult to find. As Justice Robert H. Jackson pointed out, “Just what our forefathers did envision,or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” 2
    If there is no historical material directly on point, what should the