THIS CLOWN MADE IT AND I DIDN'T?:

Enforcing a “mood”: a review of Active Liberty: Interpreting Our Democratic Constitution by Stephen Breyer (Robert Bork, February 2006, New Criterion)

Unfortunately, Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, does not qualify as a major intellectual event. Quite the contrary. He has succeeded only in further muddying already muddied waters. The book, it must be said in the interests of candor, is not even up to the intellectual standards, such as they are, of the debates among the professors. Its failing, and it is fatal, is that it purports to be a theory of interpretation while being a transparent justification for activism. Apparently meant to soothe, it succeeds only in irritating further. The book’s slapdash quality cannot be attributed to haste. Breyer’s thoughts were refined in lectures at Harvard and New York University Law School. He thanks over a dozen professors, many of them quite eminent, for their commentary and advice. This makes the inadequacies of the book all the more astounding.

At the outset, Breyer announces that “My thesis is that courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts.” By that he means two things. The first is, as he asserts over and over again, that courts must be restrained, modest, and cautious in interfering with the rights of citizens to choose their policies, whether or not judges think those policies mistaken. Judges must practice “judicial restraint” (his emphasis). Second, the provisions of the Constitution should be interpreted in order to further participation by the public in collective decisions that affect their lives. The latter is what he means by “active liberty,” hardly a startling concept and less useful than Breyer would have us believe. He cites Benjamin Constant for the distinction between “the liberty of the ancients”—the liberty to participate actively and constantly in the exercise of collective power (voting, public deliberation, etc.), which Breyer chooses to call “active liberty”—and “the liberty of the moderns” which is freedom from tyranny, even the tyranny of the majority. This distinction is a platitude. Both the main body of the Constitution and the various amendments, particularly the Bill of Rights and the post-Civil War amendments (the Thirteenth, Fourteenth, and Fifteenth) protect both political process rights and individual freedoms.

The difficulty is that active liberty, which Breyer says requires great judicial deference to democratic decisions, does not fit Breyer’s performance on the bench. How can he persuade the reader that his belief in restraint can be squared with his vigorous judicial activism? The answer quickly becomes apparent: He does it by redefining the words and concepts of the Constitution so that his results appear to flow from interpretation. He notes that most judges agree the sources of constitutional law are “language, history, tradition, precedent, purpose, and consequences.” Nothing radical on the face of that litany, one would think, but Breyer attempts a miracle of jurisprudential transubstantiation by arbitrarily assigning purposes to various constitutional provisions and predicting consequences that are by no means certain, or even likely. The result is the usual liberal agenda posing as interpretation.

Judge Bork's own law review essay, Neutral Principles and Some First Amendment Problems (Indiana Law Journal, Fall 1971), is well worth reading if you can find it. Worse things happen in life, but he seems an almost tragic figure, denied a seat on the Court by lawyers in the Senate who weren't fit to shine his shoes and forced to analyze Justices whose opinions it's not possible to respect.

Posted by Orrin Judd at February 8, 2006 7:39 AM