Judicial Immodesty Stephen Breyer, [i]Active Liberty: Interpreting Our Democratic Constitution[/i]

Review of Active Liberty: Interpreting our Democratic Constitution, by Stephen Breyer, New York: Alfred A. Knopf, 2005. 161 pp.

Originally delivered as Harvard Law School’s distinguished Tanner Lectures on Human Values, Justice Stephen Breyer’s Active Liberty: Interpreting our Democratic Constitution is a remarkably unprincipled book. In its pages, Breyer proposes the substitution of judicial for legislative initiative as the primum mobile of national government, advances the primacy of a formless but catchy abstraction (the giddy but elastic nostrum, “active liberty”) over the particulars of constitution and statute, and promotes a presumably democratic ideal (his own ethereal one, of course) over the rigors of public deliberation and consensus. In Breyer’s hands, the Constitution is transformed from a foundational document of enduring fixed principles into the breezy platitude that “democracy is good,” thereby granting judges a roving commission to do “democratic” things as they see fit. (Never mind that the architects of the Constitution actually sought to mute popular democracy rather than accentuate it.)

To frame his discussion, Breyer draws on the work of the Swiss-born political theorist Benjamin Constant, who famously contrasted “modern liberty” (the negative liberty to be free from government coercion) with “ancient liberty” (the liberty of participatory democracy). Breyer squarely identifies his “active liberty” with Constant’s “ancient liberty” and argues that democratic self-governance lies at the center of sound constitutional interpretation. In so doing, Breyer is seemingly unaware that Constant emphatically preferred “modern liberty” over “ancient liberty.” Indeed, one is forced to wonder whether Breyer actually has ever read Constant, who derisively viewed “ancient liberty” as the handmaiden of Jacobin terror in Robespierre’s France. Nevertheless, touting the right of “the people themselves to control the policy-making activities” of the branches of government, Breyer calls upon judges to “take greater account of the Constitution’s democratic nature” in interpreting the Constitution.

By professing a strong belief in “the people’s basic decency and common sense,” Breyer sheepishly claims the mantle of “judicial modesty.” Yet his curious notion of judicial modesty collapses at even the slightest touch. Rejecting a renewed fidelity to language, history, or tradition, Breyer emphasizes only the “practical consequences” of constitutional interpretation, with an eye towards achieving a “law that helps a community of individuals democratically find practical solutions to important contemporary social problems.” Once sprinkled with the pixie dust of “active liberty,” constitutionally dubious measures like racial preferences and restrictions on political speech are mystically transformed into constitutional measures (so long as they expand, or appear to Breyer to expand, the “right to participate in government”).

With all the sleight of hand of a clumsy amateur magician, Breyer’s bizarre attempt to turn judicial activism, hesto presto, into “judicial restraint” fails miserably. Proclaiming that the Constitution views every individual as equal under the law, he unaccountably concludes that some individuals (for example, low-scoring minority applicants seeking admission to the University of Michigan Law School) are more equal than others. Because campaign finance regulations “help further the kind of open public discussion that the First Amendment seeks to sustain, both as an end, and as a means of achieving workable democracy,” such restrictions are also ipso facto constitutional. Such is the ease with which thorny constitutional dilemmas are summarily dispatched by “active liberty,” the application of which conspicuously lacks any engagement with the actual Constitution itself.

Active Liberty is a brazen call for judicial intervention, and the thoughtful reader will recognize after only a moment’s reflection that Breyer is a snake-oil salesman peddling his own “enlightened” policy preferences. Proper constitutional interpretation, Breyer explains, must allow “considerable latitude” for “differences of view,” thereby manifesting a “spirit” that “seeks to understand the minds of other men and women.” (Presumably, great legal minds must differ on matters as rudimentary as, say, the right to trial by jury or the minimum age required to stand for federal elective office.)

Application of Breyer’s “active liberty” requires that a judge first determine the result that “best furthers democracy” and other “constitutional purposes” by “considering [the] practical consequences” of his decision. This approach, Breyer immodestly assures his reader, will “yield better law”—a task historically and constitutionally reserved for the people and their elected representatives in the legislature. Unsurprisingly, Breyer’s idiosyncratic application of “active liberty” also conveniently greases the skids for an elite liberal social and political agenda, and Breyer heaps praise on the activist Warren Court as an exemplar of “active liberty” in action.

Even worse, Breyer’s central thesis, that “courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts,” is a warmed-over version of John Hart Ely’s Democracy and Distrust (1980). Seeking to mitigate the judiciary’s “counter-majoritarian difficulty,” Ely defended the overturning of laws that hinder rather than promote participatory democracy. Although Breyer and Ely overlapped as professors at Harvard Law School from 1973 to 1980, Ely’s work inexplicably merits no mention in the text of Active Liberty and receives only passing reference as a lone footnote buried deep in the back of the book. Democracy and Distrust’s famous “representation-reinforcement” thesis has been a staple of constitutional law in American law schools for over a quarter century, and it is a signal failing of intellect and integrity that Breyer neither acknowledges Ely nor attempts to engage him.

Many reviewers have welcomed Active Liberty as a sharp rejoinder to Justice Antonin Scalia’s A Matter of Interpretation: Federal Courts and the Law (1997). However, the two books (much like the two authors) do not merit mention in the same breath. Active Liberty is hardly a rigorous constitutional theory of any sort, nor does it purport to be. Indeed, Breyer denies that any coherent theory can capture the “true meaning” of the Constitution or the intent of the Framers. In critiquing constitutional originalism, Breyer (like so many others) creates a strawman. His jeremiad against conservative jurisprudence amateurishly conflates textualism with originalism. Recycling the stale and predictable critiques of “original intent” originalism, which seeks to divine the specific intentions of the Framers, Breyer sidesteps the virtues of “original meaning” textualism, which argues that proper interpretation should follow the generally understood public meaning of the Constitution’s words at the time of enactment. Seemingly incapable of even the slightest nuance, Breyer paints textualism and originalism with the same broad brush while failing to offer any compelling alternative to either approach.

It remains to be seen just how many popularly enacted statutes and ordinances must be sacrificed on the altar of “active liberty.” Not only is Breyer’s call for a results-oriented jurisprudence the antithesis of judicial restraint or modesty, it is self-defeating to his stated goal of expanding participatory democracy. After all, a citizenry whose deliberative efforts at legislation are repeatedly frustrated by unelected, life-tenured judges will become (quite naturally) less enthusiastic about the prospects for democratic self-governance. As grass-roots efforts at the polls are increasingly foiled, political apathy will increase accordingly. Ironically, those issues sparking the most prominent clashes between the will of the people and the will of the courts— abortion, school prayer, eminent domain, and gay marriage—are conspicuously missing from Breyer’s book. And in those instances when Breyer has been confronted by bonafide, democratically born legislation (permitting, for example, inner-city school vouchers or parental consent for abortion), he has been quick to strike down such measures with the full force of his gavel.

Like Richard Rorty, for whom democracy is “an endless, proliferating, realization of Freedom,” Breyer views liberty as the ongoing elimination of social taboos and moral prejudices in pursuit of the unbounded autonomy of the individual. Indeed, one cannot help but contrast Breyer’s expansive and gossamer view of liberty with that of the Founders, who frequently depicted liberty as a deeply-rooted, ancient tree with a massive trunk and gnarled bark—a great symbol of lasting permanence and tradition. The Founders understood that liberty is never an unqualified good in itself; its primary value is instrumental and always rests upon the ends that it serves. “Liberty may be endangered by the abuses of liberty as well as by the abuses of power,” James Madison warned, adding that “the former, rather than the latter, is apparently most to be apprehended by the United States.” Yet, despite Madison’s prediction that a broad distribution of the franchise would produce “enlightened views and virtuous sentiments,” Breyer still sees “local prejudices and schemes of injustice” lurking around every corner.

In the end, “active liberty” is more a posture than a hermeneutic—a fashionable way of presenting oneself rather than a way of grounding or orienting oneself. As an “attitude,” Breyer’s “active liberty” refuses to rely upon “any single theory or grand view of law, of interpretation, or of the Constitution.” Because “law is connected to life,” a judge interpreting the Constitution must consider the “contemporary conditions, social, industrial, and political, of the community to be affected.” This (quite naturally) requires the super-imposition of a slippery interpretive device with no particulars (the untethered abstraction, “active liberty”) onto a Constitution of concrete particulars—a fixed document containing a series of numbered articles and clauses, amendments, and an amendment provision. In this vein, Breyer views constitutional law as a series of questions rather than a set of principles, and Breyer’s Constitution offers no answers but simply sets the stage on which the Law’s high priests can practice their craft.

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