Active Liberty: Interpreting our Democratic Constitution, by Stephen Breyer

reviewed by
Jerome Braun

Supreme Court Justice Stephen Breyer has published a book on judicial philosophy that achieves notice less because of its content than because of the author’s post. The book argues for a "sociological" approach to legal interpretation, which Breyer admits has many rivals in approaches based on direct interpretation of legal language, on historical analysis of what led to this use of language, on the meaning of the language when it was written, and reliance on legal precedent pertaining to this language. What Breyer adds to sociological approaches is an imputing of values, which opens up such analyses to criticisms for being naïve, superficial, historically incorrect, short-sighted, vain, arrogant, or just plain wrong.  I am not saying Breyer is guilty of all these criticisms, but that he sets himself up for them.

A basic no-no of legal analysis, and of moral analysis too, is bombastic rhetoric. In law schools students are endlessly warned about this reckless inferring of moral effects rather than proving moral effects of certain actions, but they learn when they get out (if they don’t know so already) that lawyers are paid to win.  In any case, judges, for appearances' sake if for nothing else, rarely come up with the ruling, “I don’t know.”  The result is dependence on ‘burden of proof’ reasoning where a state of affairs is assumed to exist, not proven to exist, because it is assumed that the existence of society depends on this state of affairs. This is the dead opposite of the ideal of the scientific method where many aspects of the state of nature are not understood, and are openly admitted to not being understandable within the present state of knowledge.  Models are used in science, but are not mistaken for reality, or shouldn’t be.

Lawyers have noticed the dangers posed by judicial supremacy.  Stuart Taylor in Slate quoted Thomas Jefferson in 1819 about John Marshall’s Supreme Court:  "The Constitution…is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please,” and Abraham Lincoln regarding the 1857 Dred Scott decision which treated slavery as eternal:  “If the policy of Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made,” Lincoln said, "the people will have ceased to be their own rulers.”

The checks and balances among the three branches collapse if the Supreme Court claims to be the final arbiter of constitutional behavior. Judicial supremacy reflects the British tradition, at least of the 18th century, that the judicial branch be free of political interference, plus the natural law tradition (more emphasized in America than in Britain) that judged law by supposedly indisputable moral standards and a common law tradition that the law would not countenance an absurdity. You might say that since medieval European monarchs were, above all, judges and war leaders, the Supreme Court in our mixed polity is the monarchical aspect of government, sharing the powers of monarchical sovereignty with the President (who gets the war powers part, plus some powers related to foreign affairs), except that the President is not elected for life, Supreme Court judges are. Like monarchs, when judges violate standards the social reaction is unpredictable because there is no defined method for dealing with them. By the same logic, revolutions are justified by arguments of natural law.

Therefore the question arises, does this book reflect an understanding of the place of the Supreme Court in our constitutional scheme of things, or does it reflect special pleading and a desire for aggrandizement of the power of this institution? Just like the monarch who claims to be serving only "the will of the people," Breyer's analysis provides no method for actually determining when "the will of the people" is being served and when it isn't. The reason social science claims that it tries to be a science is because it tries to be objective, and is sensitive to situations where "the facts speak for themselves." Breyer offers no method for determining when "the will of the people" is not being followed since, by definition, institutions that have some connection to an election, no matter how remote, are democratic.  Although he says that rules that encourage participation by the mass of citizens in government are a good thing, he never shows what standards he uses since there are times when he obviously doesn't believe democracy is such a good thing, as when it interferes with judicial supremacy in interpreting the Constitution.  ‘Democracy at work’ for him means everything the government does is democracy at work. 

Just as predecessors on the late 19th century Supreme Court absorbed too much of Spencer's Social Statics, so that they believed Social Darwinism explained how a modern economy worked, so Breyer seems to have read too much into such works as Gordon S. Wood's The Creation of the American Republic 1776-1787, coming away with the belief that because the governments that arose after the American Revolution were more democratic than colonial governments that therefore the Federal Government was the perfectly realized Democracy. In fact, all governments of Europe and America in the 18th century derived legitimacy by a bundle of claims, to conformity, to natural law, natural religion, the production of virtue in society, and the standards of "moderate" government, for which democracy, republicanism, and even monarchism were considered means rather than ends.

No doubt crediting a government with reflecting "the will of the people" - no matter the truth - is an important source of legitimacy in our times.  It is now the only source of legitimacy, unlike the 18th century which took for granted the importance of community as the source for legitimacy in government, and a model for its proper functioning, even though it was slowly decaying and ceding power to bureaucracy.  Breyer’s whole concept of democracy is convoluted. He tries to show the American Constitution instituted a democratic government by using an idiosyncratic definition of democratic government based on "the will of the people". This was obviously not the case in the original American Constitution which not only limited the right to vote (not for women, not for slaves, and not for people who did not meet minimal property qualifications), but confined popular control to the House of Representatives, not the Senate or the Presidency.  The Constitution, however, was adaptable to more democratic control later on.

For that matter, 18th century Europe boasted republican governments, particularly the United Provinces of the Netherlands and the Swiss Confederation, which served as models for the U.S. although Britain was more influential. In the 18th century, democracy, given poverty and lack of mass education, widely was considered impractical because of the dangers of mob rule. Even Thomas Jefferson, who supported democratic government, was the head of a party called the Republican Party, later the Democratic-Republican Party (a term used mostly by historians, and originally a faction of the party that supported Andrew Jackson) and only some time after Jefferson's death called the now familiar Democratic Party.  It would be as if the present day Democratic Party would be called a socialist party because certain members support socialism.

Breyer moves from his originalist argument of the Constitution reflecting the will of the people to an evolutionary argument that more participation is to be encouraged, so, whatever his glossing over 18th century conditions, he is right that now we encourage active participation of citizens. Thus, he offers an argument for deferring to legislative enactment of laws as reflecting the will of the people, without at the same time giving up the right of the Supreme Court to supervise the process or intervene, without being hampered by original intent.

Now there are circumstances when a small leap is justified, such as when the right to regulate interstate commerce is extended to modern modes of transportation analogous to the way the horse and buggy and maritime transportation was regulated. This latitude doesn't mean a judge can announce himself a cross-dressing monarchist and declare that republican government means monarchy because if only the writers of the Constitution knew what he knows now they would agree with him. There is a basic principle of Constitutional interpretation that a vague generality or value cannot overrule a specific requirement laid out in the Constitution. Even this rule in a sense can be overruled if it would result in an absurdity, but such occasions are few and far between.

Breyer seems to believe in this rule of Constitutional interpretation - except when he doesn't. The same can be said for his general approach to interpreting laws.  The second half of the book is actually quite good, and is by far the most useful part.  He details the reasoning used to make distinctions relevant to judging cases in free speech, the relation between the Federal government and the states, privacy, affirmative action, and statutory interpretation. Even when he relies on arguments relating to fostering the public good, the arguments have some plausibility.  He admits that his views differ from some colleagues on the Supreme Court. It is when he offers special pleading on the preferred status of the Supreme Court, and ignores all the issues regarding the breakdown of checks and balances, that his arguments seem self-serving.  I suppose he's just human, which is why "Who will guard the guardians?" is as true of the Supreme Court as anyone else. 

What are the consequences of the exalted status of the American Supreme Court for American democracy?  A democratic government reflects direct input from the people, unlike Justice Breyer's definition which is any government that arises from an election and afterward is almost independent of the people. Let's look at examples: In the presidential election of 1876 the disputed returns in a number of Southern states led to a dramatic impasse. Ultimately, five Supreme Court justices serving on a 15 member Electoral Commission together with five members from each house of Congress. The result, with voting on partisan lines, was to give the election to Rutherford B. Hayes, the Republican candidate. Fast forward to the disputed presidential election of 2000, and disputed returns in Florida were resolved by the U.S. Supreme Court to favor the Republican candidate, George W. Bush. This was after the Florida Supreme Court resolved the election in a way to favor the Democratic candidate, Al Gore. The election had to be resolved by courts because there was no method in place to determine what to do, other than the courts. Alas, no one but the courts were ready and interested in intervening. 

Courts have the responsibility for enforcing the nation's values, not the values of the members of the courts. As a practical matter, however, how can this be enforced? In many ways it can't, not without a public outcry over abuses, or a public monitoring of the courts.  Another result is that the abortion issue was not resolved by Rowe vs. Wade since it did not settle public discussion. Instead of discussing the effects of abortion on society, the legalistic arguments of both sides, the right to privacy versus "respect" for life convinced no opponent because both arguments were filled with "rights talk" that avoided dealing with practical consequences. Breyer would like public discussions of practical matters, but this ends up being done by judges and not by the public, and judges are not more practical than the public at large, though they certainly are richer and more secure.

The dynamic basis of democracy is creating and enforcing laws that reflect the concrete circumstances of the public affected by laws, not the vague clichés of armchair moralists and/or opportunists. Yet, just as "Who will guard the guardians?" is a problem for monarchies, so too is it for judiciaries as well.  One consequence of trying an ‘end run’ around Congress by creating ad-hoc "rights" is to guarantee that right-wing activists will push their own version of "rights."  In many ways it is harder than ever to rein in giant corporations because of all the "rights" the courts have given them.  At a certain point "rights talk" interferes with democracy when the rights are not the creation of the democratic process, but merely the creation of courts and are indistinguishable from mere wants, which always must be judged against a context of reasonableness.

There has been a severe deterioration both of community and of conceptions of the common good. One reason there is a tendency for government to misuse eminent domain is that the concept of public purpose has become muddled.  While this mechanism was once used for taking private land for building roads, bridges, and so on, there is a tendency today to favor anything that produces economic growth, even if it only benefits the already rich. So private land is given to real estate developers, as if all economic growth is a public good, which is an absurdity. Meanwhile, many non-business activists act as if they are only victims, demanding equality of result rather than equality of opportunity.  While government, and the courts, get whip-sawed between these two ideologies, the common good is ignored.  The courts are part of this vicious cycle of ignorance. The danger is that they step in to create social order because no one else is protecting the public good. ‘Better than nothing’ is the excuse for judicial activism. Better than do-nothing legislatures and do-nothing executives, claim the judges. Well, that isn't good enough, when we can have real yet unrealized democracy as an alternative.