EXCERPT: 'Making Our Democracy Work'

Sept. 14, 2010— -- In "Making Our Democracy Work: A Judge's View," U.S. Supreme Court Justice Stephen Breyer shares insights gained from his 16 years on the nation's highest court.

Breyer tackles such questions as whether the public considers Supreme Court decisions legitimate, and the best way to apply the Constitution to today's complicated world.

Read an excerpt from the book below, and head to the "GMA" Library to find more good reads.

Introduction

The Supreme Court's Role in Preserving a Nation

Day after day I see Americans -- of every race, religion,nationality, and point of view -- trying to resolve their differencesin the courtroom. It has not always been so. In earlier times, both hereand abroad, individuals and communities settled their differences notin courtrooms under law but on the streets with violence. We Americans treasure the customs and institutions that have helped us find the better way. And we not only hope but also believe that in the future wewill continue to resolve disputes under law, just as surely as we will continueto hold elections for president and Congress. Our beliefs reflectthe strength of our Constitution and the institutions it has created.

The Constitution's form and language have helped it endure. Thedocument is short -- seven articles and 27 amendments. Itfocuses primarily on our government's structure. Its provisions form asimple coherent whole, permitting readers without technical knowledgeto understand the document and the government it creates. And ittraces the government's authority directly to a single source of legitimizingpower -- "We the People."

Words on paper, however, no matter how wise, are not sufficient topreserve a nation. Benjamin Franklin made this point when, in 1787, hetold a Philadelphia questioner that the Constitutional Convention hadcreated "a republic, Madam, if you can keep it." The separate institutionsthat the Constitution fashioned -- Congress, the executive, thejudiciary -- were intended to bring about a form of government thatwould guarantee that democracy and liberty are not empty promises.But what would enable the Constitution to work not only in theory butalso in practice? How could the nation make sure that the Constituxition's limits are respected, that our citizens enjoy its important protections,that our legal system resolves disputes fairly and impartially, and that our courts dispense justice?

Are High Court Rulings Legit in Public Eye?

Alexander Hamilton, along with many of the other constitutionalframers, thought that a Supreme Court would provide part of theanswer. The Court would interpret the law, thereby enforcing the Constitution'slimits. It would help ensure a democratic political system,and it would safeguard individual constitutional rights and liberties.Indeed, as the historian Gordon Wood has pointed out, "by protectingthe rights of minorities of all sorts against popular majorities," theCourt would "become a major instrument for both curbing [American]democracy and maintaining it."

In the framers' eyes, then, the Court would help to maintain theworkable democracy that the Constitution sought to create. I have previouslywritten about the Court and democracy, explaining the ways inwhich that constitutional concept critically affects judicial interpretationof much of the Constitution's language and also how the Constitution'sdemocratic objective assumes a public that actively participatesin the nation's political life. The present book focuses on the SupremeCourt's role in maintaining a workable constitutional system of government.It discusses how the public and the Court can help make theConstitution work well in practice. And it shows why the Constitutionnecessarily assumes that the typical American learns something of ournation's history and understands how our government works.

In particular, this book considers two sets of questions. The firstconcerns the public's willingness to accept the Court's decisions aslegitimate. When the Court interprets the law, will the other branchesof government follow those interpretations? Will the public do so? Willthey implement even those Court decisions that they believe are wrongand that are highly unpopular? Many of us take for granted that theanswer to these questions is yes, but this was not always the case.

Part I uses examples from our nation's history to show how, after fragilebeginnings, the Court's authority has grown. It describes how theCourt was given the power to interpret the Constitution authoritatively,striking down congressional statutes that it finds in conflict withthe Constitution. And it goes on to describe several instances whereSupreme Court decisions were ignored or disobeyed, where the president'sor the public's acceptance of Court decisions was seriously indoubt. These examples of the Court's infirmity -- perhaps startlingtoday -- demonstrate that public acceptance is not automatic and cannotbe taken for granted. The Court itself must help maintain the public'strust in the Court, the public's confidence in the Constitution, andthe public's commitment to the rule of law.

Applying U.S. Constitution to Today's World

Part II considers how the Court can carry out this constitutionalresponsibility. The key lies in the Court's ability to apply the Constitution'senduring values to changing circumstances. In carrying out thisbasic interpretive task, the Court must thoughtfully employ a set of traditionallegal tools in service of a pragmatic approach to interpretingthe law. It must understand that its actions have real- world consequences.And it must recognize and respect the roles of other governmentalinstitutions. By taking account of its own experience andexpertise as well as those of other institutions, the Court can help makethe law work more effectively and thereby better achieve the Constitution'sbasic objective of creating a workable democratic government.

My argument in Part II takes the formof examples drawn fromhistoryand from the present day, illustrating the Court's relationshipswith Congress, the executive branch, the states, other courts, and earliercourts. Part of my aim is to show how the Court can build the necessaryproductive working relationships with other institutions -- withoutabdicating its own role as constitutional guardian.

The Court's role in protecting individual liberties presents specialchallenges to these relationships, some of which are discussed inPart III. I describe how this protection often involves a search for permanentvalues underlying particular constitutional phrases. I describea method (proportionality) useful in applying those values to complexcontemporary circumstances. And I discuss the Japanese internmentduring World War II as well as the recent Guantánamo cases to illustratethe difficulty of finding a proper balance between liberty andsecurity when a president acts in time of war or special security need.Throughout, I argue that the Court should interpret written words,whether in the Constitution or a statute, using traditional legal tools,such as text, history, tradition, precedent, and, particularly, purposesand related consequences, to help make the law effective. In this way,the Court can help maintain the public's confidence in the legitimacyof its interpretive role.

Creating a Workable Democratic Government

The various approaches that I discuss in Parts II and III fit together.They constitute a set of pragmatic approaches to interpreting the law.They provide a general perspective of how a pragmatically orientedjudge might go about deciding the kinds of cases that make up the workof the Supreme Court. I do not argue that judges should decide all legalcases pragmatically. But I also suggest that by understanding that itsactions have real- world consequences and taking those consequencesinto account, the Court can help make the law work more effectively. Itcan thereby better achieve the Constitution's basic objective of creatinga workable democratic government. In this way the Court can helpmaintain the public's confidence in the legitimacy of its interpretiverole. This point, which returns full circle to Part I, is critical.

At the end of the day, the public's confidence is what permits theCourt to ensure a Constitution that is more than words on paper. It iswhat enables the Court to ensure that the Constitution functionsdemocratically, that it protects individual liberty, and that it works inpractice for the benefit of all Americans. This book explores ways inwhich I believe the Court can maintain that confidence and therebycarry out its responsibility to help ensure a Constitution that endures.