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Bar News - March 17, 2006 Active Liberty: Interpreting Our Democratic Constitution By: By Justice Stephen Breyer
I recently read United States Supreme Court Justice Stephen Breyer’s new book, Active Liberty: Interpreting our Democratic Constitution. Replace “interpreting” with “rewriting” and you would have a much truer description of Breyer’s judicial philosophy.
Bryer begins by explaining that by “active liberty” he means the freedom to govern ourselves democratically. His “thesis is that courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts.” While this sounds like the groundwork for an interpretive approach based on judicial restraint, Breyer has something altogether different in mind. He sees the democratic nature of the Constitution as “also a source of judicial authority.” Breyer presents six examples which he claims demonstrate that an “emphasis” on active liberty, “yields better law,” which he defines as “law that helps a community of individuals democratically find practical solutions to important contemporary social problems.” What these examples demonstrate, however, is that “active liberty” is simply another euphemism for the “living constitution” approach to constitutional interpretation, under which judges supposedly make the Constitution relevant to today’s world by inventing new rights and by watering down or ignoring parts of the Constitution that have become too quaint. The difficulty for living constitutionalists like Breyer is that a majority of the American people are constitutional bumpkins who believe that judges are supposed to say what the Constitution means, not what it should mean. Hence, the living Constitution needs to be dressed up as “active liberty” in order to be presentable. Breyer’s first example involves the application of the First Amendment to various government regulations of speech. With regard to campaign finance laws, he contends that the amendment should be understood “as seeking to facilitate a conversation among ordinary citizens that will encourage their informed participation in the electoral process.” Thus, “because the campaign laws seek to further a similar objective” they are constitutional. One obvious problem with viewing the First Amendment as allowing government censorship of individual political speech in order to facilitate a group political conversation is that the amendment is located at the beginning of a catalog of individual rights, which makes it much more logical to view it as a prohibition of government censorship of individual political speech. But even if Breyer is right about the amendment’s purpose, campaign finance laws hardly encourage “informed participation.” For example, McCain-Feingold bans certain political advertising within thirty days of primary elections and sixty days of general elections, which is the time such information matters the most to “ordinary citizens.” Breyer’s other examples follow the same approach. Despite its text and history, the equal protection clause is not a prohibition against government discrimination based on race, but is “more narrowly purposive.” Thus, the use of race as an admissions criteria by the University of Michigan’s law school is constitutional because otherwise there would be “perceived exclusion,” which might impede the functioning of democracy. This is a stunningly vacuous argument as it disregards that the “actual exclusion” resulting from race-based policies must have the same effect on democracy. What is perhaps most notable about Breyer’s examples is what is missing. There is no mention of the Supreme Court’s decisions regarding abortion and sexual orientation. This should not be surprising because it is impossible to argue, to take one example, that striking down laws prohibiting partial-birth abortion “helps a community of individuals democratically find practical solutions to important contemporary social problems.” The climax of the book is Breyer’s attempt to show that his approach is superior to the originalist approach of Justices Scalia and Thomas, under which judges determine the understanding of the constitutional provision in issue at the time of its adoption and apply that understanding to new laws and circumstances. Breyer first argues that the framers did not say how the Constitution should be interpreted. But that does not mean that all interpretive approaches are equal, which means we still need to decide between his living constitution approach and an originalist approach. Indeed, Breyer implicitly concedes as much by next arguing that originalism is as subjective as other interpretive methodologies. Breyer points out that text, context and history contain uncertainties. This is true, but Breyer’s approach adds to whatever manipulability these interpretive guides contain the additional and much greater manipulability of “active liberty.” Thus, he can find that a Ten Commandments display in Kentucky is an establishment of religion, but one in Texas is not. What “active liberty” boils down to is that Breyer would have judges eschew an interpretive approach that constrains the ability of judges to rewrite constitutions and statutes for an interpretive approach that encourages judges to do so. Edward Mosca is an attorney with Soltani-Mosca in Epsom, NH. |
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