WALLACE: You talk a lot in the book about the fact that the Constitution promotes active liberty and, as you put it in the answer to my first question, encouraging democratic participation, encouraging democratic conversation.
From that point of view, isn't one of the reasons that abortion has remained such a hot-button issue in this country because the Supreme Court took it out of the political process, took it away from the legislatures when it was being decided as part of that democratic conversation in 1973?
BREYER: Well, I purposely chose my examples in this book to illustrate a theme. And I didn't choose abortion as one of them. Because more important to me in writing a book — I mean, I'll decide abortion cases when they come up, but I know perfectly well that anything I say on that subject is enormously volatile. And so, I don't want to talk about that subject, particularly in a public forum that isn't the court.
WALLACE: Even the question as to whether or not...
BREYER: No, not any question to do with abortion. I go back to book.
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WALLACE: But there's also the interrogation of prisoners, there have been other issues.
BREYER: We haven't gone into the — there have been a lot of issues, but, I mean, you're asking what we, in particular, have taken...
WALLACE: What I guess I'm asking...
BREYER: But your basic question is, how does the judge know? And the answer is that the judge has to look at the record and the testimony and what's being elicited, just as he does in all difficult cases.
Ultimately we have a Constitution that guarantees a democratic system and that guarantees certain individual rights. I show that in this book. I discuss some of them. The rights are important.
Of course, as Justice Goldberg said, as Justice Jackson said, the Constitution is not a suicide pact. Everyone understands that. And that's why that Constitution in the Fourth Amendment uses words like "reasonable." There is flexibility in it.
The court has made terrible mistakes sometimes in its history, now recognized. Eighty thousand Americans, Japanese Americans, citizens of the United States, were brought during the early parts of World War II to camps, camps where they were held against their will, even though J. Edgar Hoover said there's no need to do that and even though every historian says there was no need to do that.
But it happened, and the court ratified it over three votes — Jackson, Murphy, Roberts — who said, "Don't do this."
So what you've done, Chris, which is correct, is that you've shown how difficult that problem is. We can't ignore the civil liberties aspect. You can't ignore — you can't ignore the security aspect.
And what judges try to do in that situation is to listen to what they're told by the lawyers, the witnesses and the others, and then they do their best not to make a mistake.
Not as mistake as to their personal opinion, by the way, but a mistake as to how those words that guarantee freedom in the Constitution apply to this situation.
WALLACE: Justice Stephen Breyer, the name of the book, "Active Liberty." Thank you for joining us, sir.
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