Of course, I agree with you (
), but I'd like to comment on how incoherent Breyer's argument is.
Granted this is just a FoxNews interview, but even supreme court justices are required to put some sort of thought in what they say off the bench.
On the one hand, he says that the Constitution protects, among other things, a "a degree of equality ... so that no one gets too powerful." Then, just moments later, says it wouldn't make sense to strictly follow the Constitution because some of its phrases are vague.
Using the McCain-Feingold CFR as an example, Breyer says he ignored the clear, literal text of the Constitution -- you know, the one he says guarantees the rights of the minority against the powerful -- to make the electoral process 'more fair.' Because he couldn't have otherwise if he actually followed previous law on the topic.
This makes no sense unless one accepts the negation of what Breyer says, namely that the Constitution does not guarantee any degree of equality of outcome (i.e., what Scalia and Thomas argue). Then it is perfectly logical to ignore it to make society 'more fair.' All Breyer's talk about 'vague language' in the text and such is just a pure red herring.
But if Breyer said as much, then he'd admit that Scalia's strict constructionist interpretation is the correct one.
Scalia isn't really a strict constructionist though. There are no purely strict constructionists on the Court, because all of them toss out strict constructionism when it suits them. In order to understand Breyer's comments you have to look beyond simplistic understandings of how the law works and see the legal culture that has sustained much of the legal system through the modern, and even pre-modern, era.
The premise of having judges is that there are legitimate areas of dispute as to how the law applies in some cases and that the answer is not 100% clear. It is true, for example, that the "Constitution that protects a democratic system, basic liberties, a rule of law, a degree of equality, a division of powers, state, federal, so that no one gets too powerful"; the founders designed it specifically for this purpose. It is also true, however, that the Constitution was written in a very different, that it contains areas of ambiguity which are unclear in the modern context. Breyer seems to be arguing that when these areas of ambiguity apply, we ought to take up the interpretation that substantively fulfills the ends for which the Constitution has been designed. That is not in the least incoherent.
