Active Liberty: Interpreting Our Democratic Constitution

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OneMansView, July 24, 2010 (view all comments by OneMansView)
Interpretation vs. literalism (3.75*s)

Judge Breyer is obviously responding to Constitutional “literalists” in this short work, among them, judges Scalia and Thomas. He argues that the Constitution is a “framework” for self-governance that supports an ever evolving governance construct based on the will of the people as expressed through their legislators and legislation and associated governmental bodies. When deciding modern legal situations, Supreme Court justices must therefore “interpret” statutes and the Constitution in terms of the will and purposes of the people taking into account the “consequences” of their decisions, as well as language, precedent, history, etc. “Textualism,” a version of literalism, is an inadequate approach because the Constitution is not an extensive, precisely worded document that literally points to particular decisions. He also calls for judicial modesty in deferring to the will of the people, while literalists are far more inclined to supply meanings based on the alleged “original intent” of the Founders.

Judge Breyer regards his approach as consistent with “ancient” liberty, as opposed to “modern” liberty. Ancient liberty emphasized the collective efforts of citizens in self-governance. However, he recognizes the possibilities of coercion when participation is expected, if not required; hence modern liberty – a liberty that protects one’s right to be left alone. He contends that the Framers constructed a Constitutional order that expected citizen participation and created the liberty to do so.

The book is strongest in the general ideas concerning judicial approach. The interpretative approach is a broad-based approach, in terms of what factors are considered. The literalist approach seems self-limiting and actually more prone to subjectivity in that judges often create precise meaning from vaguely worded language. Less successful are the examples given that supposedly demonstrate the success of the interpretive approach in such areas as free speech, federalism, privacy, affirmative action, statutory interpretation, and judicial review of administrative action. For one, the descriptions border on legalese, that is, they are difficult to follow, and secondly the positions defended at times seem peculiarly anti-democratic. It is bizarre that a CA statute that permitted a consumer to challenge Nike’s claim of observing worker rights is struck down, with the author’s agreement, due to Nike’s right to persuade the public - strange indeed.

One could disagree with the judge concerning the democratic intent of the Framers. Democracy was pretty much a forbidden word among the framers. At best, they created a highly constrained democracy that excluded the participation, by Constitutional stipulation, of a large majority of Americans. As far as desiring citizen participation - elites throughout American history have generally feared collective actions originating from below, such as labor unions, and usually enlist the state in suppressing such movements. The Populists in their early years were defeated through intimidation and blatant voter fraud. The author, most curiously, does not mention the decision in the late nineteenth century that recognized corporations as legal persons, a truly monumental decision with ramifications throughout our society, especially in the political process. Nike et al are not persons, yet they trump people.

His arguments against so-called strict constructionism are compelling. The original intent of the Framers of over two centuries ago, even if it could be determined and it usually cannot, is only marginally relevant in a world that has drastically changed since 1787. Without providing an analysis of Supreme Ct decisions through the years, it is still safe to say that the Supreme Ct has been a conservative, even backward-looking, force in our society, often favoring elites. It is hardly certain that judges of Breyer’s disposition will have much on an impact on that history. But it is interesting to see the little in-fight on the Supreme Ct.

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Product Details

ISBN:

9780307274946

Author:

Breyer, Stephen

Publisher:

Vintage Books USA

Subject:

Constitutional

Subject:

Liberty

Subject:

Law

Subject:

Judicial process -- United States.

Subject:

Law | Constitutional Law

Copyright:

2005

Edition Description:

Trade paper

Series:

Vintage

Publication Date:

20061031

Binding:

TRADE PAPER

Grade Level:

General/trade

Language:

English

Pages:

176

Dimensions:

7.98x5.32x.45 in. .44 lbs.