Smile When You Say Liberty

October 31, 2005

Stephen Breyer, the soft-spoken Justice, has made some waves with his book Active Liberty: Interpreting The Constitution.

The work expounds on his judicial philosophy. It's at least in part a response to Antonin Scalia's book, A Matter Of Interpretation. Scalia believes judges should strictly interpret legal text, following the original meaning of the words. Legislative intent should not be used--if the legislators intended something, they should have written it down.

I find Scalia's approach both insufficient and extremely difficult to do properly. (I note it's extremely difficult because many act as if strict interpretation is a piece of cake. In fact, the one time I spoke to Scalia he agreed his approach was not meant to be easy.) But I'm here to write about Breyer's methods, which I also find faulty. What is the right approach? I don't know--I hope some day I will.

Breyer believes we should use a document's underlying values to aid in our understanding. I generally agree. There will always be ambiguities and we need something to help us interpret the language. But there is also danger in this approach. It's easy enough to get the words wrong--it's easier still to get the values behind them wrong. This approach invites extremely wide variation, allowing one to go so far as use words against themselves if you believe the people who wrote them would agree with your outcome (and as long as you're reading their minds, why wouldn't they?).

Specifically, Breyer believes in "active liberty." He believes those who created the Constitution had an underlying belief in promoting citizens' participation in government. At least Breyer has laid his cards on the table. There are two obvious problems here: one, he's wrong (or at least may be) and two, even if he's right, what to do with text that seems to go against him--ignore it? interpret it away? grudgingly accept it?

When I read the Constitution, especially the Framer's version, what I see is as much a fear of public participation as an embrace. The Founding Father's put in plenty of buffers to prevent "the people" from having too much say. Of the three branches of government, only one-half of one is chosen by direct voting. Now one may claim the Constitution has changed since then (and I believe the Constitution evolves, whether you like it or not, but that's a separate argument), but it sure seems like Breyer's already on shaky ground.

Worse, though, is Breyer's application of his theory. In practice, it seems to make him favor programs liberals like and disfavor programs conservatives like. (Scalia, many would claim, has this problem in reverse.)

Some note that Breyer, showing he believes in active participation in government, defers to legislators more often than most of the others Justices. This sort of "judicial restraint" can be a fairly meaningless stat. Because the present-day Court leans to the right, it's more likely to question laws the left likes, hence we'd expect Breyer to leave things alone--when laws the right likes come before him, he has no trouble striking them down.

Let's look at Breyer's opinions. Remember, he's trying to "promote democracy."

When it came to campaign finance reform, Breyer upheld the McCain-Feingold law that regulates a system that creates a lot of political speech. Some might have thought the "no law" clause in the First Amendment meant "no law," but this doesn't faze Breyer. He believes that reducing the influence of money (or at least trying to ) in our politics will help build public confidence in the system overall, thus encouraging democratic participation. It's not that Breyer's wrong about the effects of the law--though he is, he is--it's that this is the sort of social engineering considerations a legislator should make, later to be judged against the constrictions of the First Amendment.

Then there's affirmative action. Once again, Breyer has a "just so" tale to make it agree with his thesis. It turns out allowing affirmative action promotes the public's belief in institutions. There are two obvious problems with this. It doesn't, and if it did, so what?

But at least one could claim these two examples show a Justice willing to defer to legislators in tough cases. Let's see how he performs on laws that liberals traditionally don't like.

He disallows school vouchers on religious grounds, on the basis they might create disagreement among sects, against the unifying intentions of the First Amendment. Once again, he's carefully selected his view of both our history and the present-day situation, this time to strike down what many legislatures want. Then there's abortion, which Breyer backs all the way, even when the vast majority of the public would like to pass laws that don't make abortion illegal, but merely create certain hindrances. Is there a single issue in the history of the United States where public participation has been more notoriously denied, and with such little textual justification?

I have serious questions about Breyer's approach, but perhaps someone should actually try it before I reject it.