Reading The Constitution

How can you read law so it governs real people in a real world? In Reading the Constitution: Why I Chose Pragmatism, Not Textualism, Stephen Breyer argues that judges should read statutes and the Constitution as tools designed to accomplish purposes, not as static linguistic riddles. He calls this a pragmatic, purpose-oriented approach that puts workability first: when text runs out or runs into conflict, you weigh purpose, consequences, history, and precedent to keep the legal system effective and democratically accountable.

What Breyer asks you to do

You start with text and its ordinary meaning. But when the words leave room for judgment—as they often do—you ask why Congress or the Framers wrote them and what problem they sought to solve. You then consider how your reading will work for agencies, courts, regulated parties, and communities. This is not policy freelancing; it is fidelity to legislative and constitutional aims in their practical setting (think Chief Justice Marshall’s instruction that the Constitution must “endure for ages”).

Purposes, not puzzles

Breyer’s purposivism draws on the common-law method: decide cases incrementally, building standards that adapt to new facts. In County of Maui v. Hawaii Wildlife Fund, for instance, the Court adopted a “functional equivalent” test to decide when discharges traveling through groundwater need a Clean Water Act permit. That standard honors the statute’s goal—protecting the Nation’s waters—while leaving room for agency expertise and future fact patterns. Similarly, in his Brown & Williamson dissent, Breyer read the Food, Drug, and Cosmetic Act through its health-protective purpose to argue the FDA could regulate tobacco without forcing market withdrawal.

Limits of textual fixations

Textualism promises neutrality and clarity, but Breyer shows where it falters. Words often raise scope, not dictionary-meaning, disputes. In Wisconsin Central, the majority read “money remuneration” by 1937 dictionaries to exclude stock options; Breyer argued the purpose of taxing cash-like pay fits stock options too. Empirical work (Bressman & Gluck) shows Congress does not actually draft against many canons textualists invoke. And in practice, judges choosing among plausible “plain meanings” still exercise value-laden discretion.

History and consequences as guides

Breyer rehabilitates legislative history as a map of purpose and compromise. In Ali v. Federal Bureau of Prisons, focusing on the statute’s customs-and-excise context prevented unintended immunity for every federal officer. In Bruesewitz v. Wyeth, committee reports clarified which vaccine claims Congress meant to leave in court. He also insists on consequence-awareness. Azar v. Allina would have required time-consuming rulemaking for Medicare’s interpretive guidance, risking paralysis of a vital program. Courts should avoid readings that cripple administration unless Congress is unmistakably clear.

A throughline

Workability is the constitutional cousin of purposivism. Both ask: which interpretation best allows our democratic institutions to function effectively over time?

Constitutional applications

Breyer extends the same lens to the Constitution. In McCulloch v. Maryland, Marshall upheld broad national power under the Necessary and Proper Clause because a rigid reading would hobble governance. Breyer’s majority in NLRB v. Noel Canning likewise read the Recess Appointments Clause in light of two centuries of practice to keep the executive and Senate functioning. He critiques originalism (e.g., Bruen) for demanding historical analogues judges are ill-equipped to parse and for ignoring modern consequences. He defends balancing over rigid rules in rights cases (his Heller dissent) and uses contextual analysis in Religion Clause disputes (McCreary vs. Van Orden).

Separation of powers today

Modern governance depends on delegation and agency expertise. Breyer supports Chevron deference as a rule of thumb that respects that expertise, while warning that the “major questions” doctrine (NFIB v. OSHA, West Virginia v. EPA) risks undercutting Congress’s choice to empower agencies in complex domains. He favors principled limits, not blunt tools that breed instability or thwart problem-solving.

Across statutes, rights, and structure, Breyer’s message is steady: law should work. Use text, yes—but also purpose, history, precedent, and consequences. Resist seductive theories that promise certainty while leaving government unable to do its job. And when precedent has organized social life for decades, treat stare decisis with the gravity it deserves (Dobbs is his cautionary tale). Read law to make democracy function—today and tomorrow. (Note: This approach echoes Breyer’s earlier themes in Active Liberty and Making Our Democracy Work while engaging directly with the Court’s recent turn toward textualism/originalism.)

Breyer’s purposivism asks you to read statutes as instruments aimed at real-world goals. Start with the words, then ask: what mischief did Congress try to remedy? How will a given reading affect people, programs, and institutions? When text is uncertain, imagine the “reasonable legislator” who knows the statute’s aims and wants it to work. This method is not anti-text; it is pro-function and pro-democracy.

Three hallmarks: common law, pragmatism, reasonable legislator

Breyer embraces the common-law method: decide incrementally, articulate standards, and let doctrine mature through cases. He layers that with judicial pragmatism: evaluate downstream effects on agencies and the public. Finally, he deploys the “reasonable legislator” fiction to resolve genuine ambiguity—especially when actual legislators had competing aims. You are not asking what any one member thought, but what a sensible Congress would have meant to accomplish with the words it chose.

County of Maui: a living, flexible standard

In County of Maui v. Hawaii Wildlife Fund, the Clean Water Act question was whether pollutants reaching navigable waters via groundwater required permits. A rigid textual reading could allow polluters to reroute pipes through soil and avoid regulation. The Court adopted a purposivist “functional equivalent” test instead. That test honors the Act’s purpose—restoring and maintaining water integrity—while leaving room for agencies and lower courts to flesh out factors like distance, time, and material permeability. It is classic common-law incrementalism serving a statutory end.

Brown & Williamson: purpose shapes application

In FDA v. Brown & Williamson, the majority rejected FDA authority over tobacco; Breyer’s dissent read the Food, Drug, and Cosmetic Act through its public-health purpose. He argued Congress meant the FDA to regulate for safety (short of market withdrawal), and that the statutory scheme did not foreclose such oversight. The case shows how purpose can contour application without destroying legislative compromises. Both sides invoked text; purpose made the difference in how that text fit the statute’s overall design.

Why this serves democracy

When courts implement legislative aims in ambiguous zones, voters can judge whether elected representatives achieved what they promised—enhancing democratic accountability.

Practical virtues: adaptability and candor

Purposivism accepts that Congress often writes in general terms to enable adaptation. Over‑detailed codes cannot foresee future technologies or social practices (Montaigne warned about code overcomplexity centuries ago). By evaluating purposes and consequences, you maintain statutory vitality without pretending that dictionaries supply single right answers. This is also a candid approach: you explain not just what words mean, but why your reading carries out Congress’s project in practice.

How you apply it

When confronted with ambiguity, assemble a toolkit: text, structure, context, prior versions, agency practice, and legislative history. Identify the statute’s target problem and hypothesize unintended consequences of competing readings. If a plausible interpretation would gut the program or create perverse incentives (like building a pipe that discharges onto sand instead of water), reject it unless Congress expressly commanded that odd result. When close, choose the path that preserves the statute’s functioning and coherence.

Purposivism, properly used, is not license to enact your policy preferences. It is disciplined, transparent reasoning anchored in statutory goals and real-world administration. You may not love every consequence it yields, but you can explain why your reading respects democratic design and keeps the law working for those it governs. (Note: This approach aligns with Holmes’s and Cardozo’s traditions, and with modern administrative realities.)

Textualism promises that sticking to the words will restrain judges and deliver clarity. Breyer shows why those promises regularly fail in the hardest cases. Text often permits multiple “ordinary” meanings, canons are indeterminate, and many disputes turn on scope and fit, not dictionary semantics. Worse, a fixation on historical definitions can detach law from the purposes and conditions it must govern today.

Determinate words, indeterminate applications

Consider disputes about the reach of familiar terms: “sex” in Title VII, “money remuneration” in Wisconsin Central, or “same immunity” in Jam v. International Finance Corp. Dictionaries do little to solve whether Title VII covers sexual orientation or whether stock options are functionally cash-like compensation. Ordinary meanings flex with context, and the real fight is about whether new facts fall within statutory aims. Textual tools often run out right where policy-relevant choices begin.

The canons-and-dictionaries mirage

Textualists rely on canons like noscitur a sociis and expressio unius. But empirical studies (Bressman & Gluck) indicate drafters neither know nor systemically use many such canons. That breaks the alleged feedback loop in which Congress drafts against judicially announced rules. Judges can also select among canons pointing in opposite directions, masking discretion behind the veneer of linguistic inevitability.

When history freezes growth

In Wisconsin Central, the Court used 1937 dictionaries to say “money” excluded stock options. Breyer dissented: Congress meant to exclude hard-to-value in‑kind perks, not cash-equivalent instruments. A static reading penalized modern compensation forms for no good purpose-based reason. Textualists concede “technology” carve-outs, but Breyer argues that ad hoc exceptions miss the deeper point: statutes often address economic functions, not historic labels. If the function fits, refusing to adapt is arbitrary.

Discretion doesn’t disappear

Textualism does not eliminate judicial choice; it often hides it. Judges still pick which “ordinary meaning,” which canon, and which timeframe controls.

Scope questions and evolving society

Many fights are about scope—what falls inside a statutory category—rather than core meaning. Society changes: compensation evolves, pollutants follow new pathways, international organizations take on different roles. A textual lens that refuses to look at purpose and consequences risks producing brittle rules that courts and agencies must later contort or ignore. That, Breyer argues, is neither neutral nor restrained; it is impractical and invites instability.

Your takeaway

Use text as the anchor, not the whole ship. When ambiguity persists, admit that consequences and purposes legitimately matter. Ask the function question: what was Congress trying to regulate, prevent, or enable? If your reading would thwart that goal or create absurd incentives (like building pollution-detouring contraptions), it is likely the wrong reading even if a dictionary permits it. (Note: Breyer does not say textualism is useless—many cases resolve at Step One; he says that in the hardest cases, text alone rarely delivers.)

You may have heard that legislative history is unreliable. Breyer invites you to use it carefully as a compass that points to statutory purpose and compromise. In Congress, committees, staff, agencies, and stakeholders shape bills; committee reports and floor statements often memorialize the shared understanding of what a statute is supposed to do. When text leaves a gap, those materials can reveal the path that keeps the law coherent and democratically faithful.

How Congress actually legislates

Members rely on staff and subject‑matter experts. Negotiations yield general language plus reports explaining scope, exceptions, and tradeoffs. Legislative history—especially committee reports vetted by multiple actors—records this institutional understanding. Breyer’s Senate experience taught him that these documents are not afterthoughts; they are part of how Congress communicates to courts and agencies charged with implementation.

Ali v. Federal Bureau of Prisons

The Federal Tort Claims Act excluded suits for claims involving “any officer of customs or excise or any other law enforcement officer.” A purely textual reading could extend immunity to all federal law enforcement. Legislative history pointed a different way: the drafting history (Holtzoff’s language) and committee/floor discussions targeted customs and excise officers handling property seizures—not a blanket shield for tens of thousands of officers. Attention to history prevented unintended, sweeping immunity.

Bruesewitz v. Wyeth

Congress created a vaccine injury compensation system while preserving some tort claims. Committee reports made clear that manufacturing defects and failure-to-warn claims would remain in court, whereas design‑defect claims belonged in the compensation program. That history resolved ambiguity and aligned judicial outcomes with the legislative bargain. Ignoring it would have distorted a carefully balanced scheme.

Disciplined use

Breyer concedes the risk of cherry‑picking stray speeches. The cure is not a ban; it is transparent, principled reliance on substantial, vetted materials—especially committee reports tied to enacted text.

Answering formalist critiques

Some argue legislative history is not “law” under Article I’s bicameralism-and-presentment. Breyer replies: judges do not make history binding; they use it to illuminate what the enacted text was meant to achieve in practice. When you can choose among competing textual readings, legislative history helps you pick the one Congress most likely intended and the one agencies and citizens can most sensibly live under.

How you can apply it

Start with authoritative sources: committee reports, conference reports, and consistent floor statements by sponsors. Look for alignment between history, statutory structure, and the problem Congress addressed. Be wary of isolated remarks or post‑hoc statements. Use history to test consequences: if one reading contradicts the documented compromise or produces unworkable results the drafters explicitly tried to avoid, favor the reading that fits the record and the statute’s purpose. (Note: This method mirrors how agencies and practitioners already interpret complex laws in daily administration.)

A recurring interpretive fork asks whether a term’s meaning is fixed at enactment (static) or can evolve (dynamic). Breyer’s answer is not “always one way.” Instead, he urges you to ask what Congress set out to achieve and whether later developments are logical fits for that aim. The choice must consider purpose, history, and consequences—not just a dictionary snapshot frozen in time.

Wisconsin Central: function over labels

The majority held that “money remuneration” in a 1937 statute did not include stock options. Breyer dissented, reasoning that Congress excluded in‑kind benefits that were hard to value and collect, while aiming to include cash-like pay. Modern stock options are readily valued and convertible, serving the same function as cash. A dynamic reading tied to purpose would include them, preventing arbitrary gaps that undermine the statute’s revenue and fairness objectives.

Jam v. International Finance Corp.: timing and consequences

“Same immunity” for international organizations could refer to 1945 sovereign immunity or to contemporary standards. The majority chose a dynamic rule keyed to current foreign sovereign immunity. Breyer dissented, emphasizing the 1945 purpose: to help nascent international organizations function without crippling litigation. He feared that modernized immunity would expose these bodies to suits threatening core operations, contrary to Congress’s foundational design (with the President empowered to tailor immunities case-by-case).

Pragmatic test for you

Ask three questions: (1) What problem was the statute solving? (2) Do the new facts/technologies serve the same function as covered items? (3) Would a static reading frustrate or a dynamic reading overshoot the aim? Your answer can differ by context. In environmental law (County of Maui), flexible, function-focused standards keep anti‑pollution goals alive amid new discharge tactics. In immunities, static meanings might better protect original institutional designs unless Congress clearly updates the rule.

Avoid freezing or flooding

Static readings can freeze out legitimate modern applications; dynamic readings can flood the statute beyond what Congress contemplated. Purpose steers between the two.

Consequences as a safeguard

Breyer integrates consequence review to avoid administrative chaos. In Azar v. Allina, a broad reading of “substantive legal standard” threatened to force time‑consuming rulemaking for Medicare’s countless interpretive instructions, gumming up reimbursements and care. A purpose-and-consequence check preserves program agility without ignoring process values. This is the same instinct that produced flexible standards in County of Maui: let agencies refine details while courts enforce statutory aims.

When the statute points both ways, you choose the reading that best sustains the program’s core purpose at reasonable administrative cost. That is not judicial freewheeling; it is faithful stewardship of Congress’s design in a changing world. (Note: Textual canons like the “reference canon” sometimes speak to timing, but Breyer cautions they are obscure and often less illuminating than a candid purpose-and-consequence analysis.)

Modern government runs on delegation and expertise. Breyer argues that, absent clear constitutional text to the contrary, courts should allow Congress to confer policymaking space on agencies—bounded by intelligible principles—and should often defer to reasonable agency interpretations. This keeps complex systems running and respects Congress’s choice to rely on technical expertise, while preserving judicial checks in exceptional cases.

Delegation’s constitutional footing

Under J.W. Hampton, delegation is valid when Congress supplies an “intelligible principle.” That standard has sustained broad phrases like “public interest” across decades because Congress can’t micromanage evolving fields. Breyer warns that reviving strict non‑delegation (e.g., Fifth Circuit in Jarkesy) risks upending thousands of statutes and destabilizing basic governance. Schechter (1935), the high‑water mark against delegation, was historically an outlier responding to unique New Deal pathologies.

Chevron as a rule of thumb

Chevron says: if Congress is clear, follow the text; if ambiguous, defer to a reasonable agency view within its remit. Breyer treats Chevron as a practical presumption, not a wooden two‑step. Context matters, as in Barnhart v. Walton, where the Court considered expertise, the interstitial nature of the question, and deliberation level. Mead narrowed Chevron by asking whether Congress meant to delegate law‑interpreting power (formality, precedential effect), and Cardoza‑Fonseca emphasized using ordinary tools to resolve ambiguity at Step One.

Enter the major questions doctrine

Recent cases require clear authorization for issues of “vast economic and political significance.” In NFIB v. OSHA, the Court rejected OSHA’s vaccine-or-test mandate as beyond its statutory lane; in West Virginia v. EPA, it disallowed generation‑shifting under Section 111(d). Breyer cautions that treating “major questions” as a trump risks neutering Congress’s choice to use general language for complex problems, dragging judges into policy terrain agencies are better equipped to navigate.

Workability again

Deference preserves capacity to adapt rules swiftly; overbroad “major questions” review can paralyze necessary governance while Congress struggles to legislate in real time.

Agency adjudication and Article III

Delegation extends to adjudication. In Crowell v. Benson, the Court approved agency fact‑finding with judicial review of law, recognizing the need to resolve specialized disputes efficiently. Breyer favors this balance—procedural safeguards, meaningful review, and respect for congressional allocation of tasks—over categorical bars that would flood federal courts and stall benefits or enforcement regimes.

Your practical guide

When statutes assign broad responsibilities to agencies, look for: (1) an intelligible principle; (2) evidence Congress expected the agency to fill gaps; and (3) the reasonableness and expertise behind the agency’s view. Be alert when agencies claim sweeping new powers under old text, but don’t treat “importance” as an automatic veto. If curbing agency overreach risks systemic breakdown, the better answer is often a targeted check, not a doctrine that disables the administrative state wholesale. (Note: Breyer’s stance pairs with McCulloch’s vision of a government empowered with “appropriate” means.)

Breyer carries his workability theme into constitutional law. The Constitution’s broad phrases require interpretation that sustains effective governance across time. He points to McCulloch v. Maryland as the model and applies that ethos in cases like NLRB v. Noel Canning. He critiques originalism’s rigid historical tests for ignoring modern realities and for tasking judges with being amateur historians in high‑stakes settings.

McCulloch’s living framework

Chief Justice Marshall used text, structure, history, and consequences to hold that Congress could charter a national bank. His famous line—“Let the end be legitimate… and all means which are appropriate… are constitutional”—captures Breyer’s approach: focus on legitimate ends, allow reasonable means, and preserve federal effectiveness. Marshall rejected a cramped reading of “necessary” because a Constitution meant to endure must be adaptable.

Noel Canning’s calibrated pragmatism

In Noel Canning, the Court faced whether “the Recess” covered intra‑session breaks. Breyer’s majority opinion blended the Clause’s purpose (keeping government functioning when the Senate is unavailable) with two centuries of practice. He set manageable lines: breaks under three days are too short; around ten days presumptively suffice. The opinion preserved balance—respecting Senate control over its schedule while preventing governmental paralysis—illustrating how standards can be clear enough and still flexible.

Originalism’s pitfalls

Cases like New York State Rifle & Pistol Association v. Bruen demand historical analogues to justify modern gun regulations. Breyer argues this pushes judges into selective, uncertain historiography and sidelines contemporary consequences—urban density, weapon lethality, public-safety data. He also raises moral concerns (echoed in Dobbs): freezing rights to 18th‑ or 19th‑century understandings risks entrenching the perspectives of eras that excluded many from political participation.

Standards over rigid rules

For constitutional rights and structure, Breyer prefers standards that weigh interests and consequences, reserving bright‑line rules for contexts where they truly fit core values.

Your constitutional toolkit

When grappling with broad clauses—“necessary and proper,” “freedom of speech,” “judicial Power”—assemble: (1) text and structure; (2) history and practice; (3) purpose and consequences. Ask which reading preserves effective government while respecting liberty and accountability. If a literal or originalist reading would hamstring essential functions or ignore modern harms, consider whether a standard (like Noel Canning’s timing guideposts) can keep the system working without sacrificing principle. (Note: This approach resonates with pragmatists like Holmes and with comparative constitutional courts that use proportionality.)

Breyer’s pragmatism translates into three doctrinal arenas where rigid formulas misfire: rights balancing, the Religion Clauses, and stare decisis. He favors context‑sensitive standards anchored in constitutional values, with courts explaining tradeoffs openly and giving legislatures room where reasonable choices exist. He warns that discarding long‑standing precedents for theory’s sake destabilizes law and public trust.

Balancing rights with reasons

In District of Columbia v. Heller, Breyer’s dissent accepted (arguendo) an individual right to keep handguns but upheld D.C.’s ban after weighing governmental interests, burdens on the right, and available alternatives. He looked at empirical uncertainty and safety concerns, then gave elected officials leeway where evidence was contested and the law plausibly furthered a compelling aim. This is not “anything goes” balancing; it is reason‑giving that forces judges to confront facts and consequences.

Free speech: rules as guideposts, not shackles

In cases like Sorrell and McCutcheon, the Court deployed rigid content- or contribution‑based rules that, in Breyer’s view, eclipsed the First Amendment’s core values—fostering democratic discourse—by treating all content-based lines as equally suspect. Reed’s absolutist content rule produced odd results for mundane sign regulations. Breyer argues you should keep the Amendment’s purpose central and treat doctrinal rules as tools that help, not as commands that distort outcomes.

Religion Clauses: context is everything

McCreary County and Van Orden (both Ten Commandments displays) show why context matters. In McCreary, courthouse displays, recent history, and governmental actions suggested religious endorsement—unconstitutional. In Van Orden, a decades‑old monument on capitol grounds among many secular markers conveyed a more historical, non‑endorsing message—constitutional. The same text conveyed different messages in different settings; purpose and effects controlled. The guiding value is social peace and non‑endorsement, not formalistic tests alone.

Precedent’s stabilizing force

Stare decisis allows people to organize their lives around settled law. Overruling demands strong, principled reasons beyond “we think it was wrong.”

Dobbs and paradigm shifts

Breyer contends Dobbs failed standard stare decisis tests. Roe and Casey were embedded, relied upon, and not unworkable. Overruling them based largely on a new historical reading risks signaling that doctrine changes with membership, undermining stability. He situates this within broader shifts—from Lochner to the New Deal to the Warren Court—and asks whether the new textualist/originalist turn can deliver stable, workable solutions across domains like stare decisis and separation of powers. He doubts a theory that lacks tools for such problems will endure.

For you, the lesson is straightforward: in close constitutional cases, prioritize values, purposes, and consequences; use rules to guide, not dictate; and treat long‑standing precedent with respect unless changed facts, doctrinal erosion, or proven unworkability demand otherwise. That approach preserves liberty and democratic self‑government without sacrificing legal stability. (Note: This mirrors proportionality review abroad and echoes Frankfurter’s restraint.)