In which I blog about my term paper: Part I — a review of Justice Breyer’s “Active Liberty”

We know all about you…

What do you know about the Supreme Court Justices? Perhaps that Ruth Bader Ginsburg is the only woman. That Clarence Thomas had a controversial confirmation hearing (to say the least). That Justice Kennedy has taken Justice O’Connor’s place as the Court’s likely “swing” vote.  That Chief Justice Roberts and Justice Alito pretended they were not political appointees during their own Senate confirmations.

And what do we really know about their methods of jurisprudence—the way they decide cases? We’d like to think that our justices are not, in fact, political appointees (although Bush v. Gore did nothing to assure us.) With the exception of Justice Scalia’s well-known adherence to textualism or originalism—his theory that the Constitution should be interpreted as it was written by the Founding Fathers (in other words, as they intended in 1787)—we probably don’t know a great deal about how justices actually decide cases.  In some respects, this is because there’s nothing that differentiates them from one another all that much.  As Justice Stephen Breyer points out in his book, Active Liberty (Alfred A. Knopf, 2005), “They are professionals. And their professional training and experience leads them to examine language, history, tradition, precedent purpose, and consequences.  Given roughly similar forms of legal education and professional experience, it is not surprising that judges often agree about how these factors, taken together point to the proper result in a particular case. Even when they differ, the degree of difference is often small.”

But our ignorance of any one justice’s jurisprudence also is because judges rarely explain their individual approaches to constitutional and statutory interpretation.  Justice Scalia (through his general outspokenness) has been the only one to provide a glimpse into his personal philosophy—that is, until the relatively recent publication of Active Liberty (and, indeed, some argue that Breyer published his book to provide an explicit counterpoint to Scalia, his ideological opposite.)  Active Liberty is a slender volume based on a series of lectures given at both New York University and Harvard law schools, and, in it, Breyer argues that when interpreting either the Constitution or statutory texts, justices have an obligation to take into account these documents’ “democratic nature.”  This democratic nature stems from the literal history of the Constitution, but also from a tradition of judicial interpretation in which judges display “judicial modesty.”  Judicial modesty means that judges should not substitute their will for that of the people, even if the end result might be more just.  Through their elected legislature, the people should have direct access to democratic processes—the making of laws.  A judge should not get in the way of this and, as a result, should show as much “legislative deference” as he or she can.  When interpreting a law, the judge should keep in mind the purpose of that law as it was enacted by the legislature.

That being said, Breyer believes that the idea of active liberty—a citizen’s right to participate in democracy — is the most important aspect of our Constitution, our nation, or system of government and so trumps even legislative deference.  If the legislature has enacted a law that prevents the democratic system from functioning most effectively, then a judge should not defer to the legislature but, in fact, should actually assume the authority to overrule any such law.  Breyer thus goes a step beyond his call for judicial modesty to actually endorse a sort of judicial authority which, because in the end the “people” are still first, is not really even all that authoritative (and could not be subject to criticism of “judicial activism.”)

In the end, this theory of “active liberty” takes into account the purpose behind a law, as well as the consequences of this law in a modern context (something originalists/textualists such as Scalia reject).  The result is a manner of jurisprudence in which judges assume a duty to act in a way that will best benefit society and will try to achieve a balance between what the Revolutionary-era philosopher Benjamin Constant called the “liberty of the ancients” (active liberty, in which a nation’s sovereign authority is shared among its citizens) and a “liberty of the moderns” (what we think of as civil liberty, or freedom from “improper government interference”).

Why do you care about this? Breyer argues that this approach leads to “better law,” specifically as this type of jurisprudence is analyzed as a counterpoint to textualism, which tries to control perceived judicial subjectivity through a strict reliance on the literal language of the constitution. Instead, active liberty encourages judges to consider consequences to determine what a specific Constitutional provision intends. In the first part of his book, he explains this theory of active liberty in terms of its historical and philosophical context.  In the second part, he applies it to modern situations, such as campaign finance law, privacy issues, or environmental regulations.  And in the final section of the book, he defends it against criticism by originalists (some would argue, by Scalia specifically).

Breyer is brilliant. Duh. And a clear and concise writer. Again, duh. So far as a Scalia-esque originalism is the only truly well-known approach to Constitutional interpretation, Active Liberty does present an understandable balance—and is worth reading for those who like to read about contemporary Supreme Court decisions. Just as originalism is a rather straightforward manner of jurisprudence— asking, did the Founding Father’s intend this? Does the language say that?—Breyer’s approach can be read as being similarly direct:  will this promote the harmonious operation of a democratic society? While Breyer initially contends that a sort of judicial restraint is essential to promote active liberty — because the legislature is better equipped than judges to know what is best for the voting population — in the end, his theory rises above pure deference because if the law in question doesn’t have the end result of ensuring direct participation in government it should be overturned. 

Stay tuned for Part II – a Free Speech/Campaign Finance primer. You know you can’t wait!