I’ve finally read Justice Breyer’s Active Liberty, one of those books that you think you might not have to read because there are so many reviews floating about, many as long as the book itself. Still, I dutifully read it and find myself rather underwhelmed. I can only assume it is being widely read because of the position of its author, something not terribly uncommon.
The core thesis seems to be that the Constitution underwrites a conception of “active liberty” — the liberty for citizens to participate freely in self-governance — and that judges deciding constitutional cases should use this principle in adjudicating disputes and interpreting the Constitution and statutes in close cases. The idea that democracy was a core concern of the Framers is a somewhat controversial proposition — the wealthy landowners that set up our government didn’t think to put the word democracy in the founding documents. Yet given our contemporary commitment to liberal self-government, the idea that democracy should animate interpretation in close cases is hardly radical.
But democracy — of the ‘real’ sort, where average citizens participate in governance and exercise some of the ‘active liberty’ central to the book’s project — doesn’t actually figure much in Breyer’s examples, when he purports to apply his principle. His discussions of the First Amendment and federalism show some signs of caring about core democratic principles: he thinks First Amendment jurisprudence should be a fragmented area of law where core political speech gets more protection than commercial speech (rather than “speech is speech” types who do not so fragment the area); and he thinks federalism jurisprudence should get more sensitive to experiments in cooperative federalism (rather than allowing a commandeering rationale to prohibit federal-state interactions, a rationale which, in turn, incentivizes even larger federal bureaucracies).
But his four other examples seem only tangential to ‘active liberty.’ His section on privacy is focused on remaining sensitive to technological innovation, which requires practicality and focus on consequences in judicial decision-making. Where’s citizen democracy and democratic participation there? In his section on affirmative action, he argues for a choosing a purposive and remedial conception of the Equal Protection Clause rather than the colorblind version of Justice Thomas. Is that about local citizen empowerment? In the context of statutory interpretation, he endorses purposive approaches over textual ones. The democratic rationale for that preference is flimsy; legislators may be closer to the people than judges — but, as Justice Scalia has argued with force, there is a good democratic rationale to using textualism to make legislators perform their job for the people better. Finally, in his discussion of administrative law, he endorses Chevron as a “rule of thumb” rather than as an absolute rule, proposing an inquiry into legislative motive through a “what would a reasonable member of Congress think” heuristic. Again, nominally democratic — but a harsh Chevron application has similarly arguable democratic merits: executive agencies facilitate more immediate electoral accountability than the “reasonable member of Congress” who is a fiction so cannot be voted out of office.
If pressed, I don’t really think Breyer could say that democratic active liberty is the core of the book. Instead, he sees ours as a “delegated democracy,” a phrase that appears many times in the book and probably would have been a better title. Behind “delegated democracy” is something less democratic than a principle of active liberty of each citizen to participate in self-governance: it is rule by professional politicians and technocrats who make consequentialist decisions. The role of the judge is no different in this view of “delegated democracy;” the courts have certain institutional competences and they ought to make pragmatic, consequentialist decisions within their realm of expertise.
There was a time when active liberty was promoted by a constitutional theory of judicial review known as “representation-reinforcement.” That theory had real democratic credentials, I think. Breyer’s doesn’t.
Posted by Ethan Leib on May 14, 2006 at 03:52 PM