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Memo to John Roberts
Stephen Breyer, a cautious, liberal Supreme Court justice, explains his view of the law.

Reviewed by Benjamin Wittes
Sunday, September 25, 2005

ACTIVE LIBERTY

Interpreting Our Democratic Constitution

By Stephen Breyer

Knopf. 161 pp. $21

In 1997, Supreme Court Justice Antonin Scalia published a remarkable little book expounding his judicial philosophy, which he calls "textualism." Concise, accessible to the layman and charmingly written, A Matter of Interpretation was a kind of manifesto that laid out a coherent, conservative approach to modern adjudication.

Now, Justice Stephen Breyer has written a kind of response. Active Liberty , like Scalia's volume, can be read in a sitting. While it deals seriously with important debates in American law -- indeed, with the important debates in American law -- it does so in terms that should not put off educated members of the general public. And it binds the apparently disparate threads of Breyer's moderate, cautious, liberal jurisprudence together in an analytically coherent framework. With John G. Roberts Jr. now poised to take over as chief justice, these two books neatly outline the intellectual debate into which the new chief will step.

Breyer's project is harder than Scalia's, for while Scalia can pound the table demanding that judges faithfully apply the specific text that legislators enacted, Breyer's philosophical position does not boil down to any simple slogan. He argues, rather, that judges need to pay more attention to what he terms "active liberty." By this he means the people's ability to govern themselves and participate in the functioning of their political culture -- the democratic purposes that lie at the core of the Constitution. Judicial approaches that cling strictly to the Constitution's text, he contends, have "a tendency to undermine the Constitution's efforts to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively." Breyer agrees that the Constitution's democratic purposes demand judicial modesty and restraint. But he also regards them as representing "a source of judicial authority and an interpretive aid to more effective protection" of both individual freedoms and democratic participation. In other words, judges should consider how different readings will affect American democracy and, all things being equal, choose interpretations that make it function more effectively.

The idea of interpreting disputed constitutional provisions in light of the document's democratic purposes is not new. It was a major theme of the late John Hart Ely's majestic 1980 book Democracy and Distrust . And Breyer's unapologetic appeal for judges to consider the practical consequences of equally plausible constructions of constitutional or statutory provisions is reminiscent of the vision of judicial "pragmatism" offered by Judge Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit, a vision that generally stresses that judges should pay attention to real-world, practical considerations.

What Breyer's book brings to the table, however, is an elegant synthesis of these two themes, combined with a stronger democratic foundation than most liberal constitutional theory (which tends to appeal to notions of abstract justice or moral philosophy) can boast. Breyer is not here looking to abstractions to defend overturning laws. Rather, he is arguing that fidelity to the text of the Constitution or statutes alone, to the exclusion of their purpose, can risk a broader infidelity to the values their drafters sought to enact.

In support of his thesis, Breyer examines several areas of ongoing controversy before the high court: free speech and campaign finance, federalism, privacy, affirmative action and how much deference courts should show when reviewing actions by federal agencies. In each instance, he attempts either to justify the court's course in terms of the Constitution's democratic purpose or to critique the court for taking a more narrowly interpretive tack. The justice is more successful in some of these areas than in others; his defense of campaign-finance reform seems strong, for instance, and some of his examples of the problems with narrowly literal interpretations of statutes should deeply challenge those enthralled with Scalia's brand of textualism.

Yet while the brevity of Active Liberty is surely among its virtues, some of his examples are sadly underdeveloped. Breyer spends a scant 10 pages talking about federalism (the balance of power between the federal and state governments), a theme involving multiple and quite disparate lines of cases. The result is that he barely gives himself space to sketch his criticisms of the Rehnquist court's path and propose his alternative. In general, the book would have benefited from either fewer examples or a few dozen more pages.

The book's biggest flaw is that Breyer does not address those areas where his jurisprudence seems at odds with his broad theme of promotion of democracy in American life. Breyer is a supporter of abortion rights as a matter of federal constitutional law, for example. It's hard to see how this approach is tailored to encourage democratic participation; rather, constitutionalizing abortion rights removed one of the nation's most hotly debated subjects from the realm of democratic decision-making. Similarly, in the past few years, Breyer has been part of a majority on the high court that has reined in the use of the death penalty, using an evolutionary vision of the Eighth Amendment's ban on cruel and unusual punishment under which the requirements of the provision change from year to year. How can state governments (and the citizens they represent) reasonably adopt aggressive punitive practices if they don't even know what the Constitution will forbid in the future? This is not to say Breyer is wrong on these doctrines or that one cannot envision plausible answers to this problem. But he offers none.

Still, in a political culture increasingly obsessed with questions of judicial methodology, this book, like Scalia's before it, is an important contribution. Active Liberty serves to clarify the stakes in contemporary disputes over the courts, rightly emphasizing areas of common ground alongside those of controversy. A person who wants a crash course in what separates liberal and conservative judges, and the strengths and weaknesses of both sides, could do a lot worse than to read these two works side by side. ยท

Benjamin Wittes, an editorial writer at The Washington Post who specializes in legal affairs, is the author of "Starr: A Reassessment."

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