Active Liberty: Interpreting Our Democratic Constitution

Reviewed 4/12/2006 The title of the book, Active Liberty, is defined by J. Breyer as "a sharing of a nation's sovereign authority with its people" where Breyer suggests, " . . . connections. . . between the people and their government that involve responsibility, participation, and capacity." It is this idea that appears to at least partially explain why Breyer is the least activist judge...more

Reviewed 4/12/2006 The title of the book, Active Liberty, is defined by J. Breyer as "a sharing of a nation's sovereign authority with its people" where Breyer suggests, " . . . connections. . . between the people and their government that involve responsibility, participation, and capacity." It is this idea that appears to at least partially explain why Breyer is the least activist judge on the bench, confirmed by a Yale U. study last year. Breyer argues that America would be better off if citizens more actively participated in our government within the context of our founding ideals and views that participation mainly through acts of Congress. This would "make room for democratic decision-making" and "argues for judicial modesty, a form of judicial restraint". I have no doubt Breyer himself acts on this principle. As an ardent reader of SCOTUS rulings, Breyer is by far the most respectful Justice regarding legislative intent and statistically, overturns legislative actions less than any other Justice since the Rehnquist court was established. This may be due to his experience as Counsel for the Senate Judiciary Committee prior to being appointed to SCOTUS and a resulting empathy for Congress vs. individual Americans. Breyer's argument unfortunately is NOT followed-up with a pre-emptive response to an obvious question. Currently the far right is arguing for judges to not over-rule legislation that denies individual rights, even claiming "that judges are legislating from the bench" when judges overturn legislation that clearly is not supported with a clear numerated government power granted by the constitution that violates a right reserved by the people. The far right has also coined a new term, "democratic conservatism", often expressed as "the will of the people". These terms are used when a majority of Americans and legislators are actively attempting to deny individual rights to a minority even when the Constitution doesn't expressly numerate a power to deprive these Americans of their individual rights. Breyer ignores this most vocal criticism even though it's probably the most topical subject expressed in the popular media over the past couple of years regarding SCOTUS. He does do a nice job however of briefly mentioning one reason James Madison created a republican structure of government due to the failed state democracies of PA and MS rather than a purer democracy being pushed by Vision America and the Family Research Council's Tony Perkins. Given this climate of democratic conservatism being promoted by the far right, I would have expected Breyer to defend his seemingly similiar active liberty concept from a tyrannical majority and justify his active liberty position relevant to Madison focusing most government power in the republican aspects of our government: i.e., our Constitution, the Senate, the Executive and Judicial branches, and super-majority rules required to amend our constitution that protects our rights, leaving only the democratic House of Representatives to promote democratic ideals over republican ideals. Madison even went so far as to compare democratic principles to being every bit as susceptible to tyrannical tendencies as monarchies, and thus the need for a constitution heavy on reserving rights and light on government power beyond what is expressly numerated. Because this is also a recent attempt and well-publicized, it's disappointing Breyer didn't address it, though not surprising, having heard Breyer speak many times he is definitely the type to ignore shrillness and avoid direct provocative attacks, even when they are directed at him. After defining active liberty and proposing why we should embrace it as a concept, the rest of the book focuses on Breyer explaining his judicial interpretive process. He covers Speech, Federalism, Privacy (abortion not included), affirmative action, and statutory interpretation. From a tactical perspective, his process is a classic liberal approach - " . . . examine language, history, tradition, precedent, purpose, and consequences." Breyer differentiates himself though by adding another larger context within which one should understand the text and principle being considered and that is the overall objective of the Constitution; and this is where Breyer's notion of active liberty comes back into play. Studying the text and protecting the principle of the text is analyzed within the framework of protecting the process of democratic decision-making as opposed to an originalist like Barnett who argues the overriding context should be that government exists to protect the rights reserved by the people. For example, Breyer categorizes speech and prioritizes certain speech as being more worthy of defending by SCOTUS because to not protect certain types of speech would put active liberty at risk - political speech for example is more worthy of protection vs. commercial speech like an advertisement which under Bryer is more vulnerable to government regulation. Breyer would also be willing to deny some political speech, like the McCain-Feingold bill denies if he believes it would compromise the quality of democratic decision-making. I would argue that in most cases for the average Joe, with the exception of the commerce clause and property rights, Breyer's approach isn't much different than Barnett's original meaning interpretative method - the method I believe to be far superior to Breyer's (see Barnett's "Restoring the Constitution"). Breyer appears every bit as ready as Barnett to defend individual rights against tyrannical legislation but unlike Barnett, also goes along with increased government power in regards to its regulatory and prohibition powers that are often not clearly numerated in the Constitution. Because the majority of Americans and legislators seek strong regulatory and even prohibitive power through Congress (e.g., drug laws, environmental regulation, labor laws, consumer protection); Breyer is willing to concede the textual concerns to satisfy legislative intent where Barnett would strike down nearly all commerce-related prohibition powers as well as non-commerce (narrowly interpreted) regulatory powers unless the Constitution were amended granting government specific regulatory and prohibition powers. Breyer ends with what he calls "A Serious Objection" to textualism, not Barnett's original meaning, but Scalia's brand along with Bork's "original intent" approach. Scalia vehemently condemns Breyer's approach in many of his speeches; usually by creating a straw man of Breyer and Ginsburg's approach, sometimes even when Breyer was sitting on the podium with a bemused smile on his face. Breyer's indictment of Scalia's process is skillful and consistent with Breyer's modest demeanor, skewering Scalia in as nice a manner as I've ever seen even though Scalia offers Breyer no quarter. In fact Breyer never extends his indictment to revealing how hypocritical Scalia is when Scalia frequently abandons his textualist approach if the outcome would not support Scalia's clearly conservative agenda, see Gonzales v. Oregon for one of many examples. While I give the book two stars merely because a current Justice revealing his interpretative approach is of great benefit to Americans; I'll also add an additional star for the chapter taking Scalia's approach down so definitively. However, because Breyer fails to make his own case for active liberty given the current cultural climate where conservatives attack our reserved rights (primarily civil liberties) along with his lack of any rational or empirical argument that a more active public would in fact improve judicial results in more popular judicial outcomes; I'm left scratching my head and knocking two stars off from a perfect book. I would have also liked to see Breyer differentiate his approach from Justice Thomas' method, which is a far superior method relative to Scalia's that is respectful of individual rights unless they conflict with Thomas' perception of state power (which I believe is extremely flawed regarding his near limitless deference of power to states, though I am currently re-evaluating him on this topic). I would have found some utility in Breyer comparing Breyer's deference to the legislature if the public is active in government relative to Thomas' deferral to state powers that deny rights relative to Scalia pushing his conservative political agenda. Its frustrating this book does not provide that comparison even though its author lives it daily when SCOTUS is in session. I do recommend purchasing the book, but I doubt anyone who studies judicial interpretative systems will change or fine-tune their own system based on this book with the exception of Scalia fans realizing that pure textualists are forced to come down on the classical liberal side rather than with Scalia if they are to remain true to original meaning of the text as so wonderfully described by Barnett's "Lost Constitution".   hide

Great argument. My viewpoint already aligned with his a great deal, but, of course, he's much more coherent and persuasive in putting his ideas forth. A recommended read for any law student, and the language is clear enough to be accessible to those not in the field as well.