George F. Will: Mr. Breyer's 'Modesty'
Supreme Court Justice Stephen Breyer's new book is more interesting than its author probably intended. "Active Liberty: Interpreting Our Democratic Constitution" demonstrates how a posture of judicial "modesty"—Breyer's word—can empower a judge to wield immodest power in cutting down constitutional impediments to a—his—political agenda.
Breyer begins by asserting a distinction between what he considers two kinds of liberty—"modern liberty," meaning freedom from government coercion, and "active liberty," meaning freedom to participate in government. But from the fact that the Constitution's Framers valued "active liberty" it does not follow that, as Breyer argues, government measures that encourage—or are packaged as encouragements of—active liberty should be considered congruent with the Framers' overriding purpose and hence should usually survive constitutional challenges.
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....
The threshold question is whether promotion of active liberty—participation in civic activities—really is the Constitution's supreme purpose. The Framers, who convened in 1787 to create a stronger federal government, were motivated, in part, by their anxiety about the alarming quantity and dismaying quality of active liberty in the states, where majorities, including many debtors, used political power to injure a minority, their creditors. Active liberty trampled rights of contracts and property.
"My thesis," Breyer writes, "is that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts." The question, however, is not whether the Constitution has that "nature" or "objective." It does, but that by itself is not very informative; hence Breyer's exhortation for courts to "take greater account" of it is not very helpful. Neither is his way of taking account of it notably modest.
Read entire article at Newsweek
Breyer begins by asserting a distinction between what he considers two kinds of liberty—"modern liberty," meaning freedom from government coercion, and "active liberty," meaning freedom to participate in government. But from the fact that the Constitution's Framers valued "active liberty" it does not follow that, as Breyer argues, government measures that encourage—or are packaged as encouragements of—active liberty should be considered congruent with the Framers' overriding purpose and hence should usually survive constitutional challenges.
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....
The threshold question is whether promotion of active liberty—participation in civic activities—really is the Constitution's supreme purpose. The Framers, who convened in 1787 to create a stronger federal government, were motivated, in part, by their anxiety about the alarming quantity and dismaying quality of active liberty in the states, where majorities, including many debtors, used political power to injure a minority, their creditors. Active liberty trampled rights of contracts and property.
"My thesis," Breyer writes, "is that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts." The question, however, is not whether the Constitution has that "nature" or "objective." It does, but that by itself is not very informative; hence Breyer's exhortation for courts to "take greater account" of it is not very helpful. Neither is his way of taking account of it notably modest.