Customer Reviews

Active Liberty: Interpreting Our Democratic Constitution

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U.S. Supreme Court Justice Stephen Breyer's Active Liberty is an articulate short volume that argues that judges are to interpret the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." Justice Breyer's philosophy of judicial interpretation is squared against that of originalism, which argues that the law, including the Constitution, is to be interpreted in line with its original meaning and the Founding Fathers' intent. Originalists argue that the meaning of the Constitution does not change ("evolve") over time. Justice Breyer is among those who argue that it does. Originalists would counter that if the Constitution is to be changed, this should occur via constitutional amendment rather than via a new and subjective interpretation by a sitting judge or justice.

Justice Breyer argues that what matters is "the document's underlying values" and a law's consequences, not a "rigid," restrictive interpretation of its text. He argues that the Founding Fathers' intent is not always quite as clear as originalists make it out to be. Furthermore, the Constitution is at times deliberately vague because it was meant to apply to changing times. Thus, he argues, originalists are no less subjective than those who are not.

Originalism first jumped from the pages of legal journals to the arena of political debate following a 1985 speech to the American Bar Association by then Attorney General Edwin Meese III. The case for originalism was more recently argued by Supreme Court Justice Antonin Scalia in his superb 1997 book A Matter of Interpretation, which includes dissenting philosophies by several distinguished legal philosophers. Justice Breyer's Active Liberty makes a worthwhile contribution to this continuing debate. Like Justice Scalia's volume, it is short, and its language is highly accessible to non-lawyers.

A book touching upon constitutional interpretation by a sitting Justice has to be of substantial interest to students of the Court. That is true of this slender volume by Justice Breyer as well--but the book is hard to categorize, and I am not quite sure what he hoped to accomplish in this published version of his Tanner Lectures. Certainly, he is not squaring off by name against the contrasting views of Justice Scalia, as expressed in "A Matter of Interpretation" and "Scalia Dissents" (edited by K. Ring), or Justice Thomas. In fact, there are few references to either in this volume. He comes closest to this kind of focused debate in the final section of the book designated as "A Serious Objection." There he does critically focus in on the originalist/literalist approach and does so in a highly effective matter. I would suggest that reading this chapter first may put the remainder of the volume in better perspective. But be forewarned, this book is not designed to be a point-by-point, head-on refutation of the Scalia/Thomas approach.

The Justice's key contention is that in interpreting the Constitution and statutes, judges should take into account what result will facilitate the "people's" greater participation and involvement in their own government. This formula is expressed in a variety of ways, but that seems to be his main point. He discusses how this perspective would bear beneficial results in a number of areas (e.g., federalism, speech, privacy, affirmative action, administrative law) and how applying this approach results in interpretation that is closer to the intent of the drafters, be it the Constitution or statutes. One can only imagine the reaction of Justice Scalia to this type of argument, since it is admittedly somewhat "fuzzy" and imprecise and is basically discounting the role of the text as written in favor of more abstract and highly personal concepts of "democracy."

The book is very well written (one would hardly know they originated as lectures), and as is to be expected from Breyer highly polite and reasonable. To the extent it is not more of a point-by-point refutation of the Scalia approach, it is a bit of a disappointment. That Breyer is fully capable of this is evidenced in the American University debate the Justices had on January 18, 2005, regarding the role of foreign law in constitutional interpretation (transcript available of Ninowatch.com). The rich compensation for this deficiency, however, is that the book affords a very valuable perspective into how the Justice approaches questions of interpretation--and for this we can be very thankful.

Justice Breyer has two main lines of arguments, "Active Liberty" and the less talked about "Reasonable Legislator", which are connected by the overarching theme of supporting democracy. "Active Liberty" suggests that when the legal air is foggy, emphasizing active participation of the people in decision making should be used to clarify. "Reasonable Legislator" suggests that when a law is ambiguous, a judge should invoke the spirit of a reasonable legislator to determine what he/she likely would intend, even if none of the legislators had anticipated the tricky knot their law tied.

There are potential conflicts in his "reasonable legislator" proposal with other points of view in the book. For example, as Justice Breyer envisions it, "The judge will ask how this person [reasonable legislator] ... would have wanted a court to interpret the statute in light of present circumstances in the particular case" (p. 88). However, one case he discusses is an interesting recent court decision parsing the language and intent of the Federal Arbitration Act of 1925 (p. 91+). Must a judge really need to know the comprehensive historical context of 1925 America and conjure up Babbitt to ask him for guidance on his unspecified, subtle legislative aims? If so, would not this be subject to the same criticism he applies to 'originalist' approaches: "'the more 'originalist' judges cannot appeal to the Framers themselves in support of their interpretive views" (p. 117). Since Justice Breyer acknowledges that "Judges are not expert historians" (p. 126), I have not yet gained a full appreciation of this approach.

My amateur criticisms aside, I thoroughly enjoyed the book. As a non-lawyer I felt both enlightened by the content and encouraged by the thoughtful tone.

Justice Breyer's ostensible goal is to explain what he thinks is the best way for judges to interpret the Constitution. This, he says, is to read it so as to further participatory democracy while safeguarding rights. He is not a great wordsmith, and his explanation sometimes seems murky. Despite his initial emphasis on participatory democracy, much of the text describes and justifies efforts to see how the consequences of an interpretation conform to the intent of the law or Const'l provision in question. Often, that intent has little if anything to do with participatory democracy.
I find clearer and more powerful, in fact devastating, his critiques of the Scalia-Thomas-Bork brand of textual literalism. He shows how this is as subjective an approach as any other, and can lead to nasty results, not just in terms of his own approach to the Const., but in terms of common sense and common decency. Breyer nevertheless credits the literalists with objectivity, but the examples of their decisions that he provides, as well as such hypocrisies as Bush v. Gore, suggests that they are as concerned with consequences as he is, although without his favorable attitude toward democracy.

Other reviews have already covered the content of this book, especially the Washington Post review on this page. Whether you agree with Breyer's philosophy or not, this book is worth reading if you're interested in learning first-hand why people with Breyer's outlook oppose the textualist approach to Constitutional interpretation taken by Scalia and others.

This book is really slim, and at $21 is overpriced (so buy it on Amazon with the offered discount!). It is based on a set of lectures Breyer gave, so don't expect a fleshed-out scholarly monograph. I would love to read Breyer's arguments and examples in a more well-developed form. Nevertheless, I think the book clearly lays out Breyer's ideas and conveys the broad structure of his argument. Most importantly, books like this give readers first-hand access to a Justice's thinking; this is can be more attractive than reading someone else's summary of a Justice's philosophy.

Breyer's judicial philosophy and method of expressing it are logical, relevant, and unassailably critical to the success of the American republic. Whether or not your agree with his philosophy, this book is a revealing and mandatory read for anyone wishing to navigate future Supreme Court decisions and their impact on our collective future.

In this book, Breyer exhibits the intellectual modesty, moderation, and thoughtfulness for which he has become known. Perhaps to the chagrin of doctrinaire liberals, he is not nearly as strident an advocate of his views as Antonin Scalia is of his.

Breyer makes the case convincingly, as a matter of sheer logic, that the Constitution should be interpreted in such a way as to foster citizen participation in civic life ("active liberty"). In my view, he does not prove that this goal was intended by the Framers, but as a non-originalist, I am relatively unconcerned with this failure.

After all, beyond the protection of basic civil and human rights ("the liberty of the moderns"), it's hard to imagine goals and ideals that are more crucial to American democracy than Breyer's active liberty. Breyer does an especially good job in his discussion of campaign finance reform, which is one area in which old-fashioned civil liberties, in the form of the First Amendment, clash more-or-less directly with "active liberty." In the absence of reform, unrestrained campaign spending by the well-heeled can choke off grass-roots participation. If the book does nothing else, it may give new life to the case for Justice O'Connor's opinion upholding the McCain-Feingold law.

While I disagree with Breyer's argument, I give the book 3 stars because it is not only thoughtful and readable, it is crucial for any citizen seeking to understand the intellectual debate occurring within the Supreme Court. And you can safely ignore the lunatics who give it 1 star and call Breyer a commie, a fascist, tyrant, or whatever.

Where Breyer falls short is in his emphasis on the democratic character of the Constitution. He is not only historically inaccurate, but his approach undermines the very purpose of constitutionalism. First, Breyer never explicitly defines what he means by democracy, although he clearly implies it has to do with citizen sovereignty. And while it is clear that then Constitution rests on such sovereignty, it was nevertheless a remarkably undemocratic document. You do not have a constitutional right to vote for the president (really--read article II closely), the electoral college can thwart the will of the majority, the Senate does not reflect the principle of political equality, the election of only 1/3 of the senators at a time thwarts majority passions, and as first written it neither granted the authority of citizens to vote for their senators nor granted women or blacks the right to vote, and James Madison, in Federalist 10, explicitly warned against the power of the majority. Indeed, one of the main reasons Hamilton and Madison promoted the Constitution was their belief that their was too much democracy in the states. The citizens were exercising their active sovereignty a little to diligently. So Breyer's historical understanding is, at best, disputable.

Second, Breyer at times seems to view the role of the Supreme Court as being to make sure the people have their way. He treats the New Deal Court as furthering active liberty because it stopped blocking the efforts of the citizens' representatives to enact economic regulation, "thereby expanding the constitutional room available for citizens, through their elected representatives, to govern themselves" (p.10). But of course there is no need for a Supreme Court to fulfill this role. Eliminating the Supreme Court would have had the same effect!

Constitutionalism implies that there are limits to governmental power (and, interestingly, among the adjectives Breyer uses to describe government, limited is noticeably absent), so Breyer's notion of the Court as stepping aside in deference to the people's representatives--dismantling limits to their legislative reach--undermines the purpose of constitutionalism. But if his conception is that the role of the Constitution, and the Court, is to preserve representative government, then the Constitution and the Court still play a very important role, to prevent the takeover of government by a small cabal. Indeed one of his descriptions of democratic government is that power is not concentrated in too few hands, and this interpretation would explain his support for the free speech-denying McCain-Feingold campaign finance law. But ultimately this approach is dangerous because it is too democratic, ignoring Madison's warnings about majority rule. In sum, Breyer's constitutional interpretation would prevent all tyrannies except the tyranny of the majority. And that kind of constitution really isn't worth defending.

Judge Breyer is obviously responding to Constitutional "literalists" in this short work, among them, judges Scalia and Thomas. He argues that the Constitution is a "framework" for self-governance that supports an ever evolving governance construct based on the will of the people as expressed through their legislators and legislation and associated governmental bodies. When deciding modern legal situations, Supreme Court justices must therefore "interpret" statutes and the Constitution in terms of the will and purposes of the people taking into account the "consequences" of their decisions, as well as language, precedent, history, etc. "Textualism," a version of literalism, is an inadequate approach because the Constitution is not an extensive, precisely worded document that literally points to particular decisions. He also calls for judicial modesty in deferring to the will of the people, while literalists are far more inclined to supply meanings based on the alleged "original intent" of the Founders.

Judge Breyer regards his approach as consistent with "ancient" liberty, as opposed to "modern" liberty. Ancient liberty emphasized the collective efforts of citizens in self-governance. However, he recognizes the possibilities of coercion when participation is expected, if not required; hence modern liberty - a liberty that protects one's right to be left alone. He contends that the Framers constructed a Constitutional order that expected citizen participation and created the liberty to do so.

The book is strongest in the general ideas concerning judicial approach. The interpretative approach is a broad-based approach, in terms of what factors are considered. The literalist approach seems self-limiting and actually more prone to subjectivity in that judges often create precise meaning from vaguely worded language. Less successful are the examples given that supposedly demonstrate the success of the interpretive approach in such areas as free speech, federalism, privacy, affirmative action, statutory interpretation, and judicial review of administrative action. For one, the descriptions border on legalese, that is, they are difficult to follow, and secondly the positions defended at times seem peculiarly anti-democratic. It is bizarre that a CA statute that permitted a consumer to challenge Nike's claim of observing worker rights is struck down, with the author's agreement, due to Nike's right to persuade the public - strange indeed.

One could disagree with the judge concerning the democratic intent of the Framers. Democracy was pretty much a forbidden word among the framers. At best, they created a highly constrained democracy that excluded the participation, by Constitutional stipulation, of a large majority of Americans. As far as desiring citizen participation - elites throughout American history have generally feared collective actions originating from below, such as labor unions, and usually enlist the state in suppressing such movements. The Populists in their early years were defeated through intimidation and blatant voter fraud. The author, most curiously, does not mention the decision in the late nineteenth century that recognized corporations as legal persons, a truly monumental decision with ramifications throughout our society, especially in the political process. Nike et al are not persons, yet they trump people.

His arguments against so-called strict constructionism are compelling. The original intent of the Framers of over two centuries ago, even if it could be determined and it usually cannot, is only marginally relevant in a world that has drastically changed since 1787. Without providing an analysis of Supreme Ct decisions through the years, it is still safe to say that the Supreme Ct has been a conservative, even backward-looking, force in our society, often favoring elites. It is hardly certain that judges of Breyer's disposition will have much on an impact on that history. But it is interesting to see the little in-fight on the Supreme Ct.

With many ideological books, you will likely love them or hate them based on your own ideology. Unlike most ideological books, however, I think you will enjoy this one regardless of your own philosophy. Breyer clearly states his own method of constitutional interpretation and comes off as completely genuine.

Unfortunately he's often defending the indefensible. How in the world can sexual assault be considered interstate commerce? What about gun possession in a school zone as interstate commerce? Ludicrous! Yet Breyer clearly explains how he got there.

He tries to explain that he weighs the right of the people to govern themselves (democracy) against individual liberty. Sounds catchy. But wait... outside of a law that directly inhibits democracy doesn't that mean he can pick and choose which way to go on any other issue? He can uphold any law he wants by justifying it as democracy. Or he can strike down any law he wants as promoting individual liberty. How does he decide? To detractors the answer is obvious... he substitutes constitutional law with his own personal preference. Don't take my word for it though, read the book and decide for yourself. Is he really interpreting the constitution or just legislating from the bench?

Regardless of the holes and inconsistencies this book is still a great read. It's clear, concise, and Breyer lays it out there with an intellectual honesty you have to respect even if you don't embrace. Definitely read Scalia's Matter of Interpretation to get another approach used by Justices on the Supreme Court.