The Magazine

It Takes an Intellectual

To misconstrue the Constitution.

Jan 16, 2006, Vol. 11, No. 17 • By JOHN J. DILULIO JR.
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Active Liberty
Interpreting Our Democratic Constitution
by Stephen Breyer
Knopf, 176 pp., $21

PRESIDENT BUSH'S BID TO PUT Harriet Miers on the Supreme Court was crippled when respected conservative commentators complained that, whatever her true ideological pedigree, she lacked the requisite intellectual pedigree. Even if her views on most issues were credibly conservative, they argued, she could not defend them against ostensibly bigger-brained jurisprudential liberals and their favorite constitutional theorists. She would, they claimed, be little help to the court's conservative heavyweight, Justice Antonin Scalia, and no match for its sophisticated liberals, like Justice Stephen Breyer.

I was pleased when, in Miers's stead, Bush nominated Judge Samuel Alito. Still, the right's best and brightest have some additional thinking to do about the arguments they used to help bring down Miers. Brainy Justice Breyer can help. 

Active Liberty: Interpreting Our Democratic Constitution is composed from the Tanner Lectures that Breyer delivered in November 2004 at Harvard. Breyer, who was nominated by Bill Clinton and confirmed in 1994, takes ideas seriously. He refers to Benjamin Constant and Sir Isaiah Berlin on competing concepts of liberty; learned tomes by late High cCurt jurists; classic academic treatises on constitutional law; contemporary commentaries on jurisprudence, including certain writings by Justice Scalia; and much more.

Occasionally, Breyer even cites the Constitution. He also cites one of his two Tanner Lecture interlocutors, Brown historian Gordon Wood. His other interlocutor, Princeton's public law scholar Robert George, is thanked along with Wood in the acknowledgments, but is otherwise ignored.

Too bad, because in George's public comments at Harvard, he politely pressed Justice Breyer on certain cut-to-the-quick questions about "active liberty." To wit: "Why should anyone believe that courts are inherently superior to legislatures in discerning purposes and evaluating consequences in light of them . . . and in trying to do justice to what may be a complex web of values in which trade-offs and sacrifices are unavoidable? Why should courts be authorized to go beyond language, logic, structure, and history to displace legislative judgment?"

With no pretense to deep intellectual authority, Miers might have answered George's questions with a simple but sincere, "Well, I don't suppose judges or courts should be doing that, now should they?" But Breyer is no Miers. In essence, his erudite answer to George is that it takes an intellectually active activist judge like, well, him, to realize the Constitution's "democratic objective," including in cases where persistent popular majorities, and duly elected federal, state, and local representatives, beg to differ with the judge's own values and views.

Breyer is all for "judicial modesty" because the "judge, compared to the legislator, lacks relevant expertise." But, you see, "the courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory tests," and thereby "bring us closer to the proper balance to which Constant referred."

Breyer follows Constant, an early 19th-century French theorist, in distinguishing between "the liberty of the ancients"--an "active liberty" in which "a nation's sovereign authority" is shared by all citizens (deliberating, voting, holding government officials accountable for any misdeeds)--and the "liberty of the moderns," a "civil liberty" in which government's authority is strictly limited and all citizens think, speak, and act "free of improper government interference." Breyer finds "in the Constitution's democratic objective not simply restraint on judicial power or an ancient counterpart of more modern protection, but also a source of judicial authority and an interpretive aid to more effective protection of ancient and modern liberty alike."

And that's just the warm-up. Federal judges should work to "yield better law--law that helps a community of individuals find practical solutions to important contemporary social problems." Why, all they need to do is what policy analysts, public administrators, and elected officials often try to do, with only mixed or poor results. All they need to master is the conditions under which given social problems can predictably and reliably be ameliorated, then figure out realistic ways to foster those conditions without violating anyone's basic civil rights or liberties, without disregarding any deep-seated splits in popular opinion, and without draining the public's purse.