Breyer: Court Must Look “Beyond The Constitution’s Text”

In an interview yesterday with Fox News Justice Stephen Breyer either repeated a banality — the text of the Constitution, such as “freedom of speech,” doesn’t “tell you how to apply it to the Internet” — or he repeated some of the more radically expansive theories (despite often being described as a “moderate”) from his recent book, which I’ve discussed here, here, here, and here.

In his Fox interview, Breyer said that sometimes “it wouldn’t make sense to strictly follow the Constitution.” That strikes me as a rather extreme claim, and not at all common sensical.

In his interview, Breyer argued that in some cases it wouldn’t make sense to strictly follow the Constitution because phrases such as “freedom of speech” are vague. Judges must look at the real-world context — not focus solely on framers’ intent, as Scalia has argued — because society is constantly evolving, he said.

“Those words, ‘the freedom of speech,’ ‘Congress shall pass no law abridging the freedom of speech’ — neither they, the founders, nor those words tell you how to apply it to the Internet,” Breyer said.

Pointing to the example of campaign finance, Breyer also said the court was right in 2003 to uphold on a 5-4 vote the McCain-Feingold law that banned unlimited donations to political parties.

Acknowledging that critics had a point in saying the law violates free speech, Breyer said the limits were constitutional because it would make the electoral process more fair and democratic to the little guy who isn’t tied to special interests.

“You don’t want one person’s speech, that $20 million giver, to drown out everybody else’s. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money,” he said.

As I read this, Breyer is saying that, yes, McCain-Feingold violates “free speech” — or at least the version of free speech that would result from “strictly follow[ing] the Constitution” — but it is still Constitutional because it is based on what Breyer regards as the larger intent of the framers, to promote “democratic participation.”

Turns out that Breyer is thus a more extreme originalist than Scalia, since he has divined the meta-intent behind (underneath?) the mere words of the Constitutional text.

As George Will wrote here:

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.”

This led me to ask, here, after quoting Will, if Breyer is right, why even have a Constitution?

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?

Oh, wait. Without a Constitution, we wouldn’t need Supreme Court judges to “construe” it.

Say What? (1)

  1. John S Bolton December 5, 2006 at 3:19 am | | Reply

    Not only that, but we would have to selectively interpret out of existence all the anti-democratic features of the constitution.

    They wanted to limit democratic participation, not maximize it.

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