Follow this authorRuth Marcus's opinions

Testifying at her confirmation hearings that same year, Justice Ketanji Brown Jackson seemed to endorse originalism. “I believe that the Constitution is fixed in its meaning,” she said, noting approvingly, “that’s a limitation on my authority to import my own policy.”

To Breyer, that supposed constraint is illusory at best. Instead, he endorses an interpretive method that came before, under which judges would read text, yes, but also look to additional sources, from legislative history to statutory purpose to simple common sense.

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It starts with snails.

Breyer, a noted Francophile, uses a story from a French newspaper to illustrate the role of the appellate judge. A woman is riding a train from Nantes to Paris with a basket of 20 live snails. The conductor told her she had to pay up, citing rules that required each “animal” to have a ticket. The woman protests, insisting that the requirement was surely meant for cats and dogs, not escargots.

“There you have the interpretive job of an appellate judge,” Breyer writes. “How do we find the ‘right’ answer?” (Breyer doesn’t rule definitively, but it’s safe to guess he would come down anti-snail-tax.)

The more important part of Breyer’s book is his takedown of conservatives’ belief that the Constitution must be discerned by plumbing the language of the document and historical practice at the time of its enactment.

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Thus, in Breyer’s final term, the six-justice conservative supermajority junked what had become the universally accepted test for determining the constitutionality of gun restrictions, balancing the potential infringement on the rights of gun owners with the need for public protection. Instead, the court, in New York State Rifle & Pistol Association v. Bruen, insisted that those defending a gun restriction identify a historical “analogue,” an “American tradition” justifying the limitation.

The following day, in Dobbs v. Jackson Women’s Health Organization, a slimmer majority overruled the right to abortion. As Breyer writes in his book: “The majority’s reasoning boiled down to one basic proposition: Because the people who ratified the original Constitution and the Fourteenth Amendment did not understand the document to protect reproductive rights, the document could not be read, now, as protecting those rights.” Of course, the “people” who ratified the document were only White men. But we are, originalists insist, forever captive — absent constitutional amendment — to their limited horizons.

In fact, Breyer writes, the framers themselves “understood that they were defining a framework intended to endure and adapt to changing circumstances over hundreds of years. This flexible feature of our Constitution has permitted American society, including the courts, to recognize new facets of the right to liberty and equality that the document protects: the right to contraception, to same-sex intimacy, to interracial marriage, to gay marriage.”

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Breyer ticks through the many other problems with originalism: That its intentionally broad phrases, “representing general values subject to a degree of change over time,” aren’t amenable to a search for “original meaning.” That tasking judges with engaging in that enterprise is to force them to do something, rooting their way through history, for which they are not well suited.

And: That it is inherently “regressive,” forestalling “modern solutions to modern problems.” That by insisting on “rigid, perhaps dogmatic, broad rules,” it “can lead the law away from, not toward, protection” of the Constitution’s “underlying values.” That the tension between applying original meaning and respecting precedent “threatens the law’s stability” and, contrary to the protestations of originalists, lets judges decide constitutional cases “according to what they think is ‘good.’”

So, what would Breyer put in its place? He proposes a return to a judicial interpretation that takes text as one........

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