In the Pirates of the Caribbean: The Curse of the Black Pearl, Keira Knightley's character survives a raid by invoking the right of parlay, apparently a law in the strict Pirate Code that requires captors to safely escort their captives to their captain for negotiation. She didn't quite get what she was expecting. The captain says:
First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate's code to apply and you're not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl.
The distinction between "guidelines" and "actual rules" occurred to me as a read Supreme Court Judge Stephen Breyer discuss his interpretation of the Constitution. Is it a document of actual rules, or is it merely a set of guiding principles?
Breyer, who just published "Making Our Democracy Work," a book about the role of the court in American life, outlined his judicial philosophy as one in which the court must take a pragmatic approach in which it "should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances."
It's a document that contains values that must be applied "flexibly?" There are some, Justice Breyer, who would say that the Constitution is a legal document that carries the force of law. Not only that, but that it is the supreme law of the land.
"The difficult job in open cases where there is no clear answer is to take those values in this document, which all Americans hold, which do not change, and to apply them to a world that is ever changing," Breyer said. "It's not a matter of policy. It is a matter of what those framers intended."
This is stunning. This is a one-ninth of the members of the highest court in the land saying that the Constitution is not a legal document--that it's a statement of principles that he must apply to whatever circumstances come before him. He must make sure that any law under is review sort of fits within the general guidelines set forth in nation's founding document.
It's not just Keira Knightley's whose been taken captive.