TCS Daily

Justice Breyer's Active Liberty

By Mike Rappaport - December 19, 2005 12:00 AM

In his book Active Liberty, Justice Stephen Breyer attempts to develop an alternative to the originalist theory of interpretation that has received so much attention in recent years. Rather than interpret the Constitution based on its original meaning, as originalists like Justice Scalia might, Breyer argues that the Constitution should be interpreted to further political participation -- the active liberty of the ancients as opposed to the modern liberty to do as one pleases.

Breyer also maintains that the Constitution (and statutes) should be interpreted using a "purposivist" approach -- i.e. that judges should read constitutional provisions based on their general purposes and should determine whether a law promotes these purposes based on their real world consequences. Breyer claims that such an approach demonstrates judicial humility.

Unfortunately, given Breyer's previous works, one would have expected a more thoughtful book that honestly came to grips with both the benefits and costs of non-originalist interpretation. Instead, Active Liberty comes across as assertion without support, and as a work of rhetorical indirection that portrays Breyer's own judicial activism as one of judicial restraint.

At first, Breyer's jurisprudential approach seems plausible. But as one examines it more closely serious problems emerge. First, what justifies privileging political participation over other values? Breyer shows that the Framers valued political participation when writing the Constitution, but the Framers also prized other values. They therefore chose to limit popular participation in the election of Senators and the President and to prevent the legislature from abridging individual rights. Because the Framers embraced multiple values, Breyer needs to explain what justifies the preeminence of political participation, other than the fact that he deems it more important. But Breyer provides no explanation.

Similar problems arise when Breyer moves to interpreting particular constitutional clauses. Breyer believes that judges should focus on the general purposes of provisions. But the general purposes of a clause are often highly disputed matters, as there is no clear way of determining what these purposes were. For example, when discussing the constitutionality of affirmative action, Breyer claims that the purpose of the Equal Protection Clause (and the Civil War Amendments generally) was to allow blacks to "participate fully with equal rights in the democratic political community."

But the Equal Protection Clause is at least as plausibly viewed as having a different purpose -- either establishing colorblind laws or guaranteeing to minorities full civil rights (but not special political rights) -- neither of which would support his justification for affirmative action. Again, Breyer does not explain why his chosen purpose is the correct one. (And neither would his opponents using the very same rationale.)

Breyer also argues that one should determine whether a law promotes or retards these general purposes based on its modern real world consequences, not on what the Framers believed would have furthered their purposes. But the consequences of laws are hotly contested. While Breyer assumes that affirmative action will allow blacks to more fully to participate in political life, opponents of affirmative action credibly maintain that it renders blacks less influential by diminishing their accomplishments and creating greater racial animosity. Once again, Breyer gives no reason why his view should prevail, except that he, naturally, thinks it is the correct view.

Breyer's focus on general purposes allows judges to select the values that the Constitution furthers and his focus on modern real world consequences allows them to assert how laws will in fact operate. With control over the facts and values, Breyer's "active" judge has virtually boundless authority over the Constitution's content. Thus, it is no surprise that Breyer's tour through the Constitution -- from affirmative action, to campaign finance, to federalism, to separation of church and state -- only reaches destinations that Breyer appears to endorse politically.

Interestingly, Breyer's tour fails to make one important stop -- his majority opinion for the Court in Stenberg v. Carhart, which struck down a ban on partial birth abortions. One might argue that Stenberg is inconsistent with Breyer's active liberty -- purposivist approach, because the opinion protects what seems to be a personal decision unrelated to political participation. But perhaps Breyer can avoid this inconsistency. Breyer might argue that terminating pregnancies is necessary for women to work and thereby to participate fully in politics. Alternatively, Breyer never says that active liberty is the only important value. So he might argue that another purpose of the Fourteenth Amendment is to protect individual rights, which in the modern world requires giving those rights a modern interpretation. In other words, Breyer's approach might be so flexible that there is no decision, including Stenberg, that it can't be made consistent with.

Having articulated this extremely flexible interpretive approach, one would expect that Breyer would defend it against objections. It is here where Breyer's book is particularly unsuccessful. One major problem with the vast discretion that Breyer confers on judges is that it is inconsistent with the active liberty that is the primary concern of his book. Judicial activism is generally thought to undermine democracy, because it deprives the people of their ability to set policy through their representatives -- either through statutes or through constitutional amendments. Even if a statute or constitutional provision is currently unpopular and needs revision, the Court's decision to update it will deprive the people of the opportunity to do the updating and they are likely to update it in a different way than the Court does.

Far from defending the broad discretion he would give to judges, Breyer seems to be in denial about it. Breyer actually claims that, as compared to originalism (which tellingly he mistakenly refers to as "literalism"), his approach does not significantly increase the subjectivity of judicial decisions. Given the enormous power that Breyer confers on judges, this is astounding. Moving almost into the realm of self-parody, Breyer illustrates the alleged restraints on judges with his opinions from recent Establishment Clause cases. In two opinions that were so subjective that no other justice agreed with both of them, Breyer concluded that the Ten Commandments could be placed on the grounds of the Texas State Capital, but not inside a Kentucky state courthouse.

It is one thing to argue that judicial discretion is necessary, because the political process suffers from maladies and therefore more powerful judges are needed. That position, although mistaken, at least confronts the issues forthrightly. It is another thing for Breyer to deny that his activist approach empowers courts and to make that approach part of his argument for furthering political participation. Breyer's arguments here suggest that he either is oblivious to the fact that he is imposing his will on the nation or does not believe that he seriously needs to justify his actions. In neither case are his actions worthy of a Supreme Court Justice.

The author is Professor of Law, University of San Diego School of Law.


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