Retired Supreme Court Justice Stephen Breyer is making the rounds in support of his new book released this week, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. The subtitle really tells the story of the work. Breyer has written a volume critiquing the current Supreme Court majority’s approach to interpreting and applying the Constitution. In doing so, though, he has unintentionally exposed the weakness of his and other competing approaches.

By the time of his retirement in June 2022, Breyer consistently landed in the minority on significant decisions made by the court. This minority status showed decisively in the weeks leading up to his stepping down. The court closed up the 2021-2022 term by expanding Second Amendment protections, firming up religious liberty claims, and restricting the Environmental Protection Agency’s capacity to regulate. A mere six days before he left the bench, the justices handed down Dobbs v. Jackson, the case that overturned Roe v. Wade and Planned Parenthood v. Casey. Breyer dissented from every one of those important decisions.

Breyer argues that not only were these decisions wrong in outcome — they went wrong in how they read the Constitution. In critiquing “textualism,” Breyer means the majority’s belief that a careful study of the Constitution’s words and phrases, individually and collectively, can answer most legal disputes about the Constitution’s meaning. Textualism is very similar to the judicial philosophy known as “originalism.” Both seek to read the Constitution as it was publicly understood at the time of its ratification, whether that be the original seven articles or subsequent amendments.

In a Sunday appearance on Meet the Press, Breyer said this approach “sounds good, but it doesn’t work very well.” On each point, however, he ended up making an even more troubling case against the bedrock of our country: the rule of law and the Constitution itself.

First, Breyer questioned the justices’ capacity to know what people meant when ratifying constitutional provisions in the 18^th and 19^th centuries. It is fair to say this task is not always easy. However, we share a common language with our forefathers who wrote and approved these words. We have tools for ascertaining meaning in context through dictionaries of the time or other works published in the same era.

To take Breyer’s point to its fullest, we would have to write off the past as basically inscrutable. Doing so, though, undermines the rule of law. Americans believe that the law should rule. But they believe it should rule because the law originated from a legitimate lawmaker: themselves. Regular statutes come directly from Congress, but they exercise the power delegated to them by the people. In the case of the Constitution, that lawmaker is the people in a more direct fashion. But to cut ourselves off from the people who made and approved the Constitution untethers ourselves and our officeholders from truly obeying it. We can adjust or remake its meaning with little restraint but our own will — one not exercised through our own legitimate power to amend the Constitution but through manipulation of the existing text.

Second, Breyer questioned going back to the original meaning of the text because women, racial minorities, and others were often excluded from the process. We indeed needed to reform ourselves toward a fuller realization of our belief in human equality, including on who directly participated in the political process. The Constitution itself testifies to our efforts to be more just, especially in the 13^th, 14^th, 15^th, 19^th, and 24^th amendments.

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However, Breyer’s point proves more than he desires. He wishes to argue that we can amend the Constitution through evolution in societal values, not the Article V process. But he really questions the validity of the Constitution itself. By saying the ratification processes of the past did not include a just portion of the people, he essentially declares nearly the entire Constitution illegitimate. If we should not respect it based on who did and did not make it, then why should we find a reinterpretation of it well after the fact of any use?

Thus, in Breyer’s own critique of textualism resides implications destructive of his own views. Textualism, like any form of human endeavor, has its flaws and limitations. But Breyer’s argument unintentionally shows its strength and validity compared to the alternatives.

Adam Carrington is an associate professor of politics at Hillsdale College.