Justice Breyer, Originalism, and the Engine of Enfoldment

In this episode of IJW we take a look at the life, legacy, and retirement of Supreme Court Justice Stephen Breyer, and what distinguished his judgements and legal philosophy from other Supreme Court Justices. We then examine the legal doctrine of “originalism” — the idea that our founding documents should only be interpreted according to the specific contexts and understandings of the time it was written.

What is our own take? Well, our view probably lines up less with the Heritage Foundation, and more with Thomas Jefferson himself:

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”


“Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched. they ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment."

Finally, we add another somewhat different interpretation of the Constitution — not only as a set of foundational laws and principles to be followed, but as a living engine of enfoldment that was designed to reconcile seemingly irreconcilable views. Something we might want to better emulate ourselves as we engage with each other on flat postmodern media platforms like Facebook, Twitter, YouTube, etc.

We hope you enjoy the discussion! Let us know what you think in the comments below.

Excellent discussion on the Constitution, and very timely.

I think you’ve found the common ground gentlemen with perhaps the Constitution as BOTH a foundational document AND a living adaptive document.

Quick civics search turned up the following. And to better align with Integral vernacular, I’ve substituted the term Enfoldment for Amendment.

  • Since the Bill of Rights ratification in 1789, we have averaged one Constitutional Enfoldment per 13 years
  • In the last 60 years we have averaged a Constitutional Enfoldment every 12 years
  • Last Constitutional Enfoldment was ratified in 1992

It’s absolutely brilliant that the US Constitution was architected to be a Liberal Living Adaptive growing shrinking foundation for the US. And this is only at the highest Federal levels! Individual States have perhaps more Legislative, Judicial and Administrative duties than the National government thus keeping inclusive and diverse decision making as close to the Citizenry as possible. How more equitable than to empower Oregonians to self determine as much of their lives as possible while also empowering Texans or New Yorkers or Californians the same?

Given the beauty of this foundation, Democratic principles - by the people, for the people if you will - are structurally incorporated. Smaller changes and more routine administrative tasks can be handled immediately by the Administration. Medium term changes, reductions or expansions can be handled by our elected Congress (2 year terms) and Senate (6 year terms), with Constitutional level Enfoldments requiring inclusive deliberation spanning multiple election cycles. By requiring 67% Congress and Senate for ratification, how more brilliant a way to determine if proposed changes are a reactionary short lived populist hot flash if you will or truly the sustained Will of the People by the people for the people. Serious changes require serious Inclusion before we Enfold at the Constitutional level.

As our supreme arbiters perhaps we should better enable the Supreme Court to execute their missions by increasing the number of Justices. Last expansion was in 1837 going from 7 to 9. Perhaps 13 or 15 would be more appropriate to the work load and help heal our nation for future generations.