How Should Judges Judge?

Active Liberty

Interpreting Our Democratic Constitution

Stephen Breyer

Alfred A. Knopf, $21, 176 pp.

Supreme Court Justice Stephen Breyer's elegant little book has gotten a lot of press. The reason for the buzz is that the view of constitutional interpretation that he puts forth directly challenges the view of the Court's most outspoken conservative, Justice Antonin Scalia. Scalia has long argued that his view of how the Constitution should be interpreted, which he calls "originalism," is most consistent with a democratic system of government and best protects against what he takes to be "the main danger in judicial interpretation of the Constitution," namely, that "judges will mistake their own predilections for the law" (see Antonin Scalia, "Originalism: The Lesser Evil," University of Cincinnati Law Review 57/3, 1989). "Originalists" hold that the meaning of the Constitution should be understood as fixed. So, for example, the amendments to the Constitution mean what they meant when they were ratified, and no more. The job of a judge is to resolve questions of law by determining and applying the original meaning of the constitutional text in question. Breyer presents a liberal reply to Scalia and others.

There is much that is compelling in Breyer's argument, and it is to be hoped that his book will be widely read. In the end, though, it is difficult to escape the impression that he has made matters too easy for himself. Breyer mostly ignores here the "culture war" controversies like abortion and gay rights that currently dominate public discourse about the Court. In a way, this is all for the better. With all the Sturm und Drang over questions of individual rights, questions of the common good hardly make the papers. Breyer draws attention to these questions, and so deserves praise. Nevertheless, he needs to write another chapter for the second edition of this book. More precisely, he needs to explain and justify what his view of constitutional interpretation implies for the controversies that divide us.

Ironically, the title of Breyer's book, Active Liberty: Interpreting Our Democratic Constitution, could serve Scalia just as well for a book of his own. Breyer and Scalia share a commitment to what the nineteenth-century French philosopher Benjamin Constant called the "liberty of the ancients." In Breyer's definition, it is "the freedom of the individual citizen to participate in the government and thereby to share with others the right to make or to control the nation's public acts"--hence Breyer's term "active liberty." Constant contrasted the liberty of the ancients with the liberty of the moderns. To be "modern," in Constant's lexicon, is to value first and foremost "the enjoyment of security in private pleasures" (or, "peaceful enjoyment of private independence"). From this perspective, "liberty" is the name for "the guarantees accorded by institutions to these pleasures." These guarantees have traditionally included the rule of law; freedom of expression, association, and religion; and property and voting rights.

Neither Breyer nor Scalia is in the least opposed to modern liberty in this sense. Instead, they both acknowledge that the Constitution guarantees individual rights. Both also want to maximize the opportunities for the people to rule themselves, that is, to exercise ancient or active liberty. Where they part ways is on the means to this end. To advance active liberty, Scalia wants judges to limit themselves to protecting the rights unambiguously articulated in the Constitution and leave all else to the will of the people as expressed by legislators and other elected officials. In his estimation, originalism best serves this end. To advance active liberty, Breyer wants judges to read the Constitution in light of what he takes to be the "basic constitutional purpose: creating and maintaining democratic decision-making institutions." In his estimation, originalism in fact risks "undermin[ing] the Constitution's efforts to create a framework for democratic government" by "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." Countering originalism, Breyer claims that judges "should recognize that the Constitution will apply to 'new subject matter ... with which the framers were not familiar."' The job of the judge then (quoting Learned Hand) is to "'reconstruct the past solution imaginatively in its setting and project the purposes which inspired it."' In Pauline language, the letter kills, but the spirit gives life; Breyer chooses life. For him (to use Pauline language once more) the Constitution is a covenant of a free people. It is old, but always open to the new by virtue of its enduring values.

Thus stated, Breyer's view of constitutional interpretation, exercised by unelected judges, seems almost to invite the danger that Scalia fears: that "judges will mistake their own predilections for the law." Breyer agrees that judicial "subjectivity" is a danger, but he vigorously disputes the charge that rejecting literalism invites subjectivity, noting that the relevant constitutional values or purposes "limit interpretive possibilities." He also disagrees with Scalia about the "main danger" to be feared in interpreting the Constitution. For Breyer, this danger is interpreting the Constitution in such a way that it no longer "helps to resolve problems related to modern government"--thus "we the people" are not served here and now.

Basically, Breyer's book can be seen as a development of his impassioned dissent in a 2002 federalism case, Federal Maritime Commission v. South Carolina State Ports Authority. He also shows the implications of his view of constitutional interpretation for campaign-finance reform and affirmative action, among other disputed questions. Still, his case against originalism and for his own view is clearest and most compelling in his discussion of federalism, the proper division of powers among the federal and state authorities.

The opinion of the Court in Federal Maritime was written by Justice Clarence Thomas, another Originalists. The question before the Court was whether state sovereign immunity--in particular, immunity from complaints by private parties--precludes federal agencies like the Federal Maritime Commission (FMC) or, say, the Environmental Protection Agency (EPA) from adjudicating a private party's complaint against a state. Under the Shipping Act, the FMC was granted the authority to investigate complaints of violations of the Act. The agency decided to do so through an adjudicative process somewhat similar to court proceedings. The Court ruled against the FMC.

What is interesting about this case is that the Constitution says nothing one way or another about administrative adjudications. For, as Thomas observes, "The framers, who envisioned a limited federal government, could not have anticipated the vast growth of the administrative state" and did not anticipate administrative adjudications at all. So what is the Originalists to do here?

Thomas invokes the rule of an 1890 case, Hans v. Louisiana, that "the Constitution was not intended to 'rais[e] up' any proceedings against the states that were 'anomalous and unheard of when the Constitution was adopted."' He then notes "strong similarities" between administrative adjudications and civil litigation. The Eleventh Amendment is the key constitutional text in Thomas's argument. This amendment, ratified in 1795, stipulates that "the judicial power of the United States shall not be construed to extend to any suit ... commenced or prosecuted against one of the United States by citizens of another state ...." From here, Thomas's reasoning to his conclusion can be expressed in a syllogism: There are strong similarities between administrative adjudications and civil litigation. Civil litigation by a private party against a state is unconstitutional under the Eleventh Amendment. Therefore, administrative adjudications by a private party against a state are unconstitutional under the Eleventh Amendment.

Decisions like Thomas's in this case raise the question of whether originalism really does protect against judicial subjectivity (or, as it is often called today, "judicial activism"). One might wonder just how strong the analogy is between civil litigation and administrative adjudications. Beside similarities, there are notable differences. Further, the text of the Eleventh Amendment bears explicitly on "the judicial power of the United States," which executive-branch agencies like the FMC do not exercise. It might then be considered strange that Thomas, an Originalists, extends the scope of the amendment beyond its plain meaning. More generally, times having changed since the eighteenth century, it is no wonder that an eighteenth-century text would not speak explicitly to all our questions. In such a case, originalism, strictly speaking, is useless. The judge cannot be an Originalists here because there is no text here to apply. Instead, the judge must decide what basic purposes moved the framers. In the end, this is what Thomas does: he prioritizes the framers' fear of "encroachments by the federal government on fundamental aspects of state sovereignty, such as sovereign immunity." But why should fear about an overbearing federal power in the eighteenth century rule us in the twenty-first? Other purposes might be claimed to be more central to the Constitution, which is what Breyer claims.

Two sentences from Breyer's dissent nicely summarize his argument in Active Liberty:

   Even if those alive in the eighteenth century did not "anticipate
   the vast growth of the administrative state," they did write a
   Constitution designed to provide a framework for government across
   the centuries, a framework that is flexible enough to meet modern
   needs .... An overly restrictive judicial interpretation of the
   Constitution's structural constraints (unlike its protections of
   certain basic liberties) will undermine the Constitution's own
   efforts to achieve its far more basic structural aim, the creation
   of a representative form of government capable of translating the
   people's will into effective public action.

As Breyer also observes in his dissent, restrictive interpretations of federal powers threaten the common good. For such interpretations may undercut "many laws designed to protect worker health and safety," including the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, and the Solid Waste Disposal Act. Thomas's precise aim may be to roll back the power of the federal government to what it was before the New Deal--the aim of advocates of the so-called Constitution-in-Exile. One way or the other, however, he cannot claim merely to be applying the Constitution in its original meaning. In the Court's recent federalism cases, it is the originalists who can be accused of being "activist judges." (That is a development that senators should ask the current Supreme Court nominee, Judge Samuel A. Alito, about.) Still, to reiterate, Breyer needs to extend his argument.

Originalism has become the rallying cry for opposition to a series of disputed decisions since the 1960s over the regulation of contraception, abortion, and most recently, homosexual relations. These decisions include, most important, Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), Roe (1973), Carey v. Population Services International (1977), Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), and Lawrence v. Texas (2003). What all these decisions have in common is that they find a right nowhere enumerated in the Constitution: to "marital privacy," to decide "whether to bear or beget a child," to terminate a pregnancy, and to engage in intimate conduct with another person of the same sex. Since Roe, these rights have been justified under the Due Process Clause of the Fourteenth Amendment, ratified in 1868, which prohibits a state from depriving "any person of life, liberty, or property, without due process of law."

Since the late nineteenth century, the Court has recognized that the Due Process Clause "guarantees more than fair process," as former Chief Justice William Rehnquist wrote in Washington v. Glucksberg (1997). In other words, it is settled law that the clause is not only about legal process, but about what is due to persons in our democracy. But there agreement more or less comes to an end.

For antioriginalists, what is protected by the Due Process Clause is open to development as our understanding of what is essential to liberty evolves. From this perspective, the Due Process Clause, because of the generality of its language, is unlike most of the instructions and prescriptions that we give in our daily lives. These instructions typically have a precise and limited purpose. For example, if I tell my students on Monday to write a two-page paper for Friday, the meaning of my utterance on Friday is the same as it was on Monday. And it would be silly (if not incomprehensible) for my students to claim that its meaning had changed over the course of the week. Yet, consider the maxim, "To thine own self be true." If I say it to somebody today, it is true that, at least in a sense, its meaning will be the same thirty years from now as it is today. But I do not pretend to know what this maxim will mean concretely for this person thirty years from now, and it would be silly and in fact contradictory for me to insist that it must mean that she do with her life then exactly what she should do with her life now. Similarly, according to the anti-originalists, it would be senseless for the Court to insist that the Due Process Clause must mean concretely the same today as it did in 1868. Further, to insist as much would run counter to the spirit of the amendment, which after all was incorporated into the Constitution in order to spread what the preamble calls "the blessings of liberty." Because times have changed since 1868, so should our understanding of what is due to persons in our democracy. In Justice Anthony Kennedy's words in Lawrence, it must now be recognized that "liberty presumes an autonomy of self that includes" not only "freedom of thought, belief, expression," as has traditionally been acknowledged, but "certain intimate conduct," which has come to be realized only over the past half-century.

By contrast, for originalists, the claim that what is protected by the Due Process Clause is open to development as "our" understanding of what is essential to liberty evolves runs counter to the spirit of self-government in a representative democracy. In his dissent in Casey, Scalia founds his opposition to recognizing a right to abortion on "two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed." Accordingly, "The states may, if they wish, permit abortion on demand," but they are not required to do so under the terms of the Constitution. Instead, he holds that the question of the permissibility of abortion ought "to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting."

On the questions of abortion and gay rights (think gay marriage), a strong case can be made that it is Scalia, not Breyer, who is the defender and advocate of "active liberty." (Breyer voted with the majority in Lawrence.) For it is Scalia who holds that "we the people" ought to have the right here to decide what should and should not be legal. Breyer claims to find "in the Constitution's democratic objective ... a source of judicial authority and an interpretive aid to more effective protection of ancient and modern liberty alike" (emphasis added). Yet he does not explain how or why prioritizing "the Constitution's democratic objective" would result in the protection of "modern liberty," that is, freedom from government regulation. To the contrary, it may seem that giving priority to the Constitution's democratic objective would mean a reluctance to extend individual rights beyond those enumerated in the Constitution. Breyer also writes that, "from a historical perspective, one can reasonably view the Constitution as focusing upon active liberty, both as important in itself and as a partial means to help secure individual (modern) freedom" (emphasis added). But again, how would promoting "active liberty"--that is, the liberty of the ancients--serve as a means to help secure modern liberty? There are possible answers to this question--it may be argued, for example, that refusing to recognize the right of gay persons to have sexually intimate relationships demeans and disenfranchises these persons--but Breyer does not give any. That is a shame because these answers need both elaboration and case-by-case evaluation.

The legal philosopher Joel Feinberg observed some years ago that originalism seems to imply "a deep skepticism about the existence of moral rights." For originalists refuse to recognize the existence of rights not explicitly articulated in the Constitution, as if there were nothing outside of the text. This is ironic because, judging by the Declaration of Independence, the founding fathers and framers of the Constitution themselves firmly believed that persons possess moral rights before the institution of government and its codification in a constitution. For the Declaration holds it to be self-evident that government is instituted in order to secure, among other unnamed rights, the inalienable rights of life, liberty, and the pursuit of happiness. It would then make sense to read the Constitution, in particular the Ninth Amendment, as seeking to protect our rights whether they are named or not. (The Ninth Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.") It can further be observed, though, that the Court's liberals and libertarians seem to share a similar skepticism. Consider the claim in the opinion of the Court in Casey that "at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Here a deep skepticism about truth is made to found our rights in general and the right to terminate a pregnancy in particular. So a suggestion: Maybe what is needed to bring peace, or at least civility, to our culture wars is that our jurists become more philosophical again. We do not want to be ruled by philosopher-kings, but we should want our Supreme Court justices to be able to argue in the highest terms. We should also anticipate the second, expanded edition of Breyer's book.

Bernard G. Prusak is a Gallen Fellow in the Humanities at Villanova University.