Above, US Supreme Court Justice Stephen Breyer discusses national security and constitutionality with Aspen Institute President and CEO Walter Isaacson.
On August 3, 1994, the Honorable Stephen Breyer took his seat as Associate Justice of the Supreme Court. In the decades since, a number of cataclysmic events — including the recent global terror attacks — have led legal officials to question the limitations of the Constitution, and whether the law should be stretched to preserve national security. But for Breyer, there is little to consider on the matter: “The Constitution does not write the President a blank check—even in war time.”
Breyer recently sat down with Aspen Institute President and CEO Walter Isaacson to discuss his latest book, “The Court and the World: American Law and the New Global Realities,” as part of the Alma and Joseph Gildenhorn Book Series, as well as his views on constitutionality. While Breyer does not advocate that the country’s supreme laws be followed blindly in the face of national security threats—“The Constitution is not a suicide pact,” he said—he maintains that the written law, as opposed to written votes, should dictate national policies.
To highlight his argument, Breyer cited a conversation involving Franklin D. Roosevelt’s Attorney General, Francis Biddle.
“After serving his term, Biddle said, ‘Every President has felt during time of national emergency, I must solve this war, I’ll worry about the Constitution later. [In response, Judge David] Pine says, ‘You’re really saying that in time of war, the President can do anything he thinks is necessary? What are the checks?” [To this Biddle replied] “Oh no, there are checks—the ballot box.”
For Breyer, the potential to “bend and weave is already in the Constitution,” and stretching national laws to appease voters is not only unconstitutional, but unnecessary.
When pressed to predict whether he thinks civil liberties will be restricted in light of current national security crises, the Justice admitted that he didn’t know. Paraphrasing former US Supreme Court Justice Robert H. Jackson, he said that answering the question “would be like asking Joseph to interpret the dreams of Pharaoh.”
What Breyer can predict, however, is the country’s need to rely on international legal precedents in confronting national security issues—a topic at the crux of his new book.
“[In 15 to 20 percent of the cases we field], there is no way to resolve the legal problems involved without knowing something about law beyond our shores,” he said. “The problems we’re facing are beyond one country’s ability. [We need to remember that] we’re not the only country in the world who deals with the [kinds of] problems we’re facing.”