Breyer dukes it out with Scalia

The law, lawyers, and the court.
Sept. 12 2005 6:54 AM

Take That, Nino

Breyer dukes it out with Scalia.

Book cover

Last month, Slate readers valiantly rushed into the breach to defend the notion of an evolving, living constitution. The volunteers queued up after Dahlia Lithwick pointed out that "originalism"—the interpretive theory that promotes a literalist reading of the Constitution based on the understanding of its framers—looks ascendant, based on all its good press. Lithwick and her respondents aren't the only ones who think so. Justice Stephen Breyer also seems to have noticed that the originalists, led by his dear colleague Justice Antonin Scalia, have had the field virtually to themselves. Breyer fights back in a new book: Active Liberty: Interpreting Our Democratic Constitution.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Calling Breyer's missive a book is a bit of an oversell. It's really a well-packaged presentation of three lectures he gave in 2004 at Harvard, in 135 large-pocket-sized pages. Breyer's theory is well timed for the upcoming addition of two new members of the Supreme Court. And it offers comfort to liberals who want their side to have a fighter in the ring with Scalia—to a point. Breyer is sensible and scholarly and often persuasive, if you buy the premise that the Constitution wasn't set in stone in 1787. What he's not is passionate and inspiring. However cogently argued, his book is a reminder that most American liberal judges have little to offer these days on that score.

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Active Liberty takes its title from a distinction made by political philosopher Benjamin Constant between "the liberty of the moderns" and "the liberty of the ancients." Modern liberty is the sort traditionally associated with the Bill of Rights—freedom from government telling you what to say and how to live. Ancient liberty (which becomes active liberty in Breyer's formulation) is the citizenry's sharing of decision-making power with its sovereign. When citizens vote on questions like war or peace, Constant promises, they enlarge their minds and ennoble their thoughts.

Which suggests that the answer to America's problems, intellectual as well as political, is to turn the nation into California by instituting governance by federal referendum. Breyer, naturally, doesn't propose anything so radical. Instead he proffers an "interpretive aid" to the Constitution. Breyer wants to show judges the way toward giving more weight to the practical consequences of their rulings and to "the Constitution's democratic nature," the structural elements of American government that favor participatory democracy. These twin pillars, Breyer hopes, would move the Supreme Court back to emphasizing the values enshrined in the 1960s and '70s by the Warren Court, thus ensuring full equality, a goal from which he thinks the Rehnquist Court has backed away.

Readers be warned: When the 67-year-old Clinton appointee turns to actually applying his interpretive approach to recent Supreme Court cases, his dry-minded administrative lawyer side takes over. You may want to skip the snoozer examples and get the gist from his relatively vivid chapter on affirmative action. In the 2003 case Grutter v. Bollinger, the Supreme Court had to decide whether the University of Michigan law school could give a leg up to applicants of color, on a case-by-case basis, to promote the goal of a diverse student body. Four justices—Scalia, Clarence Thomas, William H. Rehnquist, and Anthony Kennedy—said no. They thought the 14th Amendment instructs the government (including state-funded schools) to be as colorblind as possible. The other five justices took a "purposive" approach, as Breyer characterizes it. The majority gave weight to actual consequences, in particular the stated needs of American businesses for a diverse workforce. And it cited the importance of "effective participation by members of all racial and ethnics groups in the civic life of our Nation." Bingo for Breyer: "What are these arguments but an appeal to principles of solidarity, to principles of fraternity, to principles of active liberty?" the justice asks, in a rare indulgence in italics.

Breyer would like his approach to change the direction the court has taken in recent cases, like the decisions that champion states' rights at the expense of federal power. His main goal, though, is to come back at the originalists with a method of constitutional interpretation that's anchored in consistent application of legal principles. Scalia has made intellectual headway by arguing that unless judges stick to the Constitution's text, they risk making up the law as they go. Some liberals respond with, essentially: "So what?"—because they think part of a judge's job is to channel contemporary values—or "I know you are but what am I?"—because they think originalism is a means to a far-right end. But not Breyer. He is a leader of the recent liberal embrace of judicial modesty and restraint—which means he gets antsy when courts edge toward deciding cases based on what they think is right. Breyer chides the originalists for "placing weight upon eighteenth-century details to the point at which it becomes difficult for a twenty-first-century court to apply the document's underlying values." But he doesn't want the law to become unmoored any more than they do. By consistently giving weight to practical consequences and participatory democracy, Breyer says he has forged a tool that uses the constitution's "relevant values" to "limit interpretive possibilities." Take that, Nino.

Except that Scalia is unlikely to register all of this as a knock-out blow. Why elevate the Constitution's nods to participatory democracy when it also makes anti-majoritarian moves, an originalist would surely argue. And consequences in the eye of what beholder? Fair enough. For those who prefer a living Constitution to a dead one, however, the chief shortcoming of Breyer's book isn't theoretical imperfection. It's perfect abstraction. Justices William Brennan and Thurgood Marshall, the liberal lions of a bygone era, make one appearance between them in Active Liberty, in a muted footnote. And Breyer does not roar in their stead.

Brennan and Marshall's torch-bearers today mostly sit on courts in Canada and South Africa and Israel and Europe. Those places don't have centuries-old constitutions, and as a result, judges there tend not to care about originalism. They talk and write unapologetically about dignity, equality, and the human spirit. And many of them don't think judicial restraint is a paramount virtue or worry that they're imposing their values from on high. "A judge should also be part of his people," Israeli Supreme Court Justice Aharon Barak said in a speech five years ago. "I sit on a bench located in the world."

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