If even a fraction of what George Will says in his devastating Newsweek review of Supreme Court Justice Stephen Breyer’s new book is true, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION should win a prize … as the best legal fiction of the year.
Breyer, surprisingly perhaps, is a peculiar kind of originalist. He has decided that the overriding purpose of the Constitution, which trumps any actual text in the document that may point in other directions, is to encourage, promote, and expand “the right to participate in government.”
Breyer asserts that the Framers did not merely value freedom to choose active liberty — participation in civic affairs — they made the nurturing of such activity the Constitution’s primary purpose. Then, in the name of judicial “modesty,” Breyer justifies judicial deference to Congress when assessing the constitutionality of measures — such as race-based entitlements, and restrictions on political speech — that he thinks foster, or are intended to foster, active liberty, broadly defined by him.
Never mind, as Will points out, that
[n]o such “right” is really at issue in racial preferences in college admissions, or in the McCain-Feingold regulations of the quantity, content and timing of political speech.
Will’s response to this remarkably unimpressive argument is right on target:
Breyer asserts that the Framers did not merely value freedom to choose active liberty — participation in civic affairs — they made the nurturing of such activity the Constitution’s primary purpose. Then, in the name of judicial “modesty,” Breyer justifies judicial deference to Congress when assessing the constitutionality of measures — such as race-based entitlements, and restrictions on political speech — that he thinks foster, or are intended to foster, active liberty, broadly defined by him.
But Breyer’s modesty is grounded in a strikingly immodest interpretive leap — his idiosyncratic simplification of the Constitution’s purpose. First he reduces the Constitution to a charter for promoting active liberty, as he defines it. Then this reduction becomes a license for important aspects of the current liberal agenda — aspects that many people consider constitutionally problematic. So Breyer’s judicial modesty looks less like a neutral constitutional principle than political special pleading.
Breyer candidly writes that what he calls the Constitution’s “democratic objective” is “a source of judicial authority.” Something announced as a species of modesty confers a not-at-all-modest mandate for Breyer and like-minded justices to measure the constitutionality of government activities by measuring their consequences. This is intensely result-oriented jurisprudence: measures should be called constitutional if they expand “the right to participate in government.”
Hmm. Wouldn’t Breyer’s interpretation lead to the conclusion that slavery was in fact unconstitutional even without the 13th Amendment, or that the 14th Amendment was unnecessary to a finding that states cannot impose racial segregation?
I don’t know which is more depressing: that someone capable of this sort of analysis is a sitting Supreme Court justice, or that this argument is taken seriously by serious scholars, such as Cass Sunstein:
With this small but important book, Justice Stephen Breyer emerges as a leading theorist of constitutional interpretation on the highest bench in the land. At last there has appeared a direct and substantial challenge, within the Court, to the constitutional thought of Justice Antonin Scalia, who has long offered an ambitious and forceful account about how to approach the Constitution and laws of the United States. For the next decade, I think, much of the intellectual battle, within the Court and within the nation, will have to be conducted with close reference to the conflict between the starkly different constitutional theories of Scalia and Breyer. The impact of President Bush’s appointments notwithstanding, liberalism is finally, at the level of ideas, pushing back.
Sunstein notes that
[a]s a professor at Harvard Law School, Stephen Breyer specialized in administrative law and regulatory policy. Constitutional law was not his field.
Will makes a good case that it still isn’t.
UPDATE [19 Sept.]
Will notes that Breyer “makes the legislative judgment — a strikingly implausible one — that racial preferences valuably enhance ‘solidarity’ and ‘fraternity’ and diminish the risk of ‘racial division,’” and he asks:
What have such judgments to do with modest constitutional reasoning? He immodestly carves an exception to the Constitution’s guarantee of equal protection of the laws by deciding that some unequal protection to benefit certain government-favored groups will enhance “active liberty” as he understands it and as he asserts that the Framers valued it.
I would go a bit farther and ask, What have such judgments to do with fact? The notion that racial preferences reduce “racial division” makes about as much sense as saying that religious or sectarian favoritism reduces religious strife.
In this regard, a recent critical review of Thomas Sowell’s AFFIRMATIVE ACTION AROUND THE WORLD: AN EMPIRICAL STUDY (Yale, 2004), while challenging much of Sowell’s interpretation, nevertheless agreed with his central finding:
In tallying up the consequences of affirmative action in the United States, India, Malaysia, Sri Lanka, and Nigeria, Sowell finds little to be happy about. In one country after another negative consequences of affirmative action far outpace anything that might be considered positive….
The strongest indictment against affirmative action policies has been the intergroup polarization and conflict that they have engendered. [Emphasis added]
I’m glad to see that someone makes the obvious objection to the idea of the “living constitution”.
If the constitution changes according to the views of judges about some needs, wants, and desires of the people then why did the framers include an amendment process?
With a living constitution no amendment process is needed. And no amendment can mean anything anyway until judges like it.
John, I remember Sowell using just those nations as examples in a book called Preferential Policies, maybe a decade ago. The pattern was remarkably consistent from one country or province to the next: majority ethnic group resents superior economic performance of smaller ethnic group (often though not always originally an immigrant group — the Chinese diaspora figures in many of his examples in this role) and tries to handicap it by giving various official preferences to the majority; the smaller group rebels and, in many cases, turns to violence. To read his account, the Sri Lankan civil war (which even now isn’t exactly what you’d call “over”) was practically speaking a war over governmental preferences for the Sinhalese.
And again and again, Sowell writes, the crux is education — strict quotas on slots for “unfavored” minorities, requirements that entrance exams be given, and classes taught, only in the majority language (reasonable enough in this country, but hardly in Sri Lanka or India); &c. We may have much bitterness over affirmative action here, but what Sowell describes in Sri Lanka, in Malaysia, and in his several Indian case studies is in a very different league.
The really useful thing about that book to me (and I would assume the new one is along the same lines) was in pointing out a few things that should have been obvious, but weren’t.
(1) That preferences enacted by a dominant majority on behalf of itself don’t betray an attitude of racial superiority towards the despised “others”; quite the contrary. You don’t give yourself a head start in a race against a lame man.
(2) That it usually is the majority defending itself against the minority’s superior performance, because the majority (or some member(s) of it) generally holds the political power. Jim Crow, in other words, is the usual pattern, not the exception. Our current compensatory version of AA is the exception.
(3) That most such policies don’t involve blacks vs. whites, but one non-white group vs. another. It’s obvious that the system of preferences in India alone directly affects a number of people much greater than the population of the United States.
Anyway, I look forward to reading the new book, and thanks for bringing it to our attention.
Michelle — Good points all. The one thing this book seems to emphasize (I don’t recall whether it was in the last one as well) is that a preponderance of the goods bestowed by preferences (univ. admissions, jobs, etc.) always, country to country, go to the most “advantaged” of the “disadvantaged” group receiving the preference — something on the order of the top 10% of the preferred group receiving over 50% of the benefits going to the group. The international equivalent of the sons and daughters of black physicians receiving preferential admissions, etc.