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.
Breyer candidly writes that what he calls the Constitution's "democratic objective" is "a source of judicial authority." Something announced as a species of modesty confers a not-at-all-modest mandate for Breyer and like-minded justices to measure the constitutionality of government activities by measuring their consequences. This is intensely result-oriented jurisprudence: measures should be called constitutional if they expand "the right to participate in government."
But wait. No such "right" is really at issue in racial preferences in college admissions, or in the McCain-Feingold regulations of the quantity, content and timing of political speech.
Racial admissions policies may improve the nation's work force by improving its diversity, and may, in Breyer's words, give people who would otherwise lack them "tools, such as information and education" useful in political participation. But Breyer confuses the improvement of citizens' tools for conducting an activity with establishing or enlarging the right to engage in that activity.
He makes the legislative judgment--a strikingly implausible one--that racial preferences valuably enhance "solidarity" and "fraternity" and diminish the risk of "racial division." What have such judgments to do with modest constitutional reasoning? He immodestly carves an exception to the Constitution's guarantee of equal protection of the laws by deciding that some unequal protection to benefit certain government-favored groups will enhance "active liberty" as he understands it and as he asserts that the Framers valued it.
Regarding "campaign-finance reform"--the political class regulating the quantity, content and timing of speech about the political class--Breyer is permissive. But is his permissiveness a manifestation of modesty? Hardly.
He makes the legislative judgment that large disparities between individuals' abilities to make political contributions produce unequal "access" and hence an unhealthy "appearance." Therefore he decides that although the First Amendment forbids Congress to abridge political speech, that proscription is somehow superseded by Congress's right to, in Breyer's words, "inhibit" some "speech opportunities" in the name of fine-tuning "a democratic conversation." This is modesty?
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.