Scalia And Breyer On Constitutional Interpretation: A Reflective Analysis
- IJLLR Journal
- Dec 28, 2025
- 2 min read
Samidha Padwal, LLM (Corporate & Financial Law & Policy), Jindal Global Law School, O.P. Jindal Global University
ABSTRACT
Justice Scalia’s and Breyer’s conversation stands as a model of civil debate, helping readers to understand that behind every contest over a Supreme Court opinion lies a deeper theory of law. Grappling with their arguments has sharpened my own sense of constitutional interpretation: a judge must respect the Constitution’s text and history, yet also ensure the law’s vitality. As Justice Breyer said, perhaps learning from abroad can assist in applying our own Constitution in “today’s world,” and perhaps Scalia was right to say that American democracy must maintain ownership of its fundamental charter. The balance between these impulses remains the central challenge of any constitutional system whether in Washington, Delhi, Ottawa, or Berlin. In the end, Scalia and Breyer didn't agree on much other than being friendly with each other.
Scalia on Constitutional Meaning: Method and Influence
Justice Scalia repeatedly emphasizes that the Constitution should be read as its framers and ratifiers understood it, and criticizes any approach that allows it to “change from era to era.” In the conversation, after some light banter, Scalia bluntly states: “That’s my approach to interpretingtheConstitution.” HecontraststhiswithwhatheseesasBreyer’sapproach:Scalia notes that Breyer follows the Court’s earlier doctrine of “evolving standards of decency,” a phrase from the Eighth Amendment context, which holds that the Constitution’s meaning can shift over time. Scalia openly rejects that idea as a guiding philosophy. He declares that he “detests” the notion that the Constitution must conform to “the evolving standards of decency that mark the progress of a maturing society.” For Scalia, treating the Bill of Rights as a dynamic charter is mistaken: “It seems to me that the purpose of the Bill of Rights was to prevent change, not to foster change and have it written into a Constitution.”
