The United States is a nation built upon principles of liberty - principles that include a democratic form of government. The French political philosopher Benjamin Constant understood the connection. He distinguished between liberty as understood by the ancient world, the Greeks and the Romans, and liberty as understood by the Nineteenth Century moderns.In advance, let me offer fair warning that what follows will be extremely pedantic, but it contains points about republican liberty that I've made it the past and feel compelled to reiterate. I do so now having: received a signed copy of Neil Gorsuch's Republic, If You Can Keep It; found a copy of Stephen Breyer's Active Liberty at the Thrift Store; and been immersed in the debates over Adrian Vermeule's essay, Beyond Originalism in the Atlantic. It just seems like a good time and place to restate some first principles about the Founding and what follows from it.
First off, here is what I wrote in a recent blog post following a reason interview with David French, IT BEGINS WITH MISUNDERSTANDING REPUBLICAN LIBERTY (BrothersJuddBlog, 4/11/20):
'I Think the Protection of Liberty Is a Common Good': The Dispatch's David French on the value of liberalism and the problems with the new nationalist right (STEPHANIE SLADE, THE MAY 2020, reason)
What is most interesting about the Gorsuch and Breyer books--both consisting in the main of lectures they've given, though Mr. Gorsuch includes some case law--is that there is considerable agreement on a basic fact, that the Constitution requires that the making of laws be subject to democratic processes. It is here that one would think a left/right Court consensus was waiting to be forged. But from that starting point they proceed to quite different concerns. And this divergence is possible, for the most part, because, while celebrating the idea of liberty, neither is really willing to embrace it totally as the basis for the Court to render decisions.
Mr. Breyer's idea of "active liberty" is particularly specious, as can be seen in the introduction at the top of the page, because while he begins--quite correctly--by acknowledging that the American nation is founded on the basis of liberty and that democracy is a component of that liberty, he quickly and, apart from ideology, inexplicably reduces liberty to little more than democracy. Over the course of the contained lectures he argues that it is then the job of the Court to vindicate the concern for democracy by doing seemingly whatever it needs to do to increase democracy.
It will be apparent that this is such an amorphous standard for judging cases as to be meaningless. It is little more than a justification for an activist judiciary to do whatever it feels like doing. More problematic is that, even were we to take it seriously, in elevating just one component of republican liberty to a place of primacy, it not only misshapes the whole idea but does so in favor of what is not even the most important part. After all, were it possible to find another form of rule (law) making that protected us all equally from dominance by a few who would not be so limited then we would not necessarily have to require the participatory test. Imagine a past in which a perfect monarch chose to bind himself to exactly the same laws he expounded for his subjects, or a future in which Artificial Intelligence could determine a perfect balance between freedom (natural Rights) and security (the limits we are willing to accept on those rights) and democracy becomes superfluous as a matter of liberty.
But it is the final stumbling block that is fatal. For Mr. Breyer's suggestion is really that the Founders, who founded a republic that is largely devoted to circumscribing the powers of democratic majorities, intended to use the least democratic branch of the government to force ever greater democratic control upon the citizenry. To the extent that this assertion is coherent it is plainly anti-Constitutional. It is, indeed, hard to take this book seriously. Were we to try to save the author from himself and afford his core idea some value, we might join him in saying that because democratic participation is so important to republican liberty, to the Founding and to the Constitution, the Court ought to impose a judiciary standard that requires every law/regulation to be subject to democratic processes, which would mean that they had to originate in the Legislative Branch and never in the Judiciary nor the Executive. The reason why he does not follow where his own sentiment seems to point becomes obvious when we turn to his colleague.
The great strength of Mr. Gorsuch's book lies in his sustained assault upon administrative law. the sheer scope and reach of the modern nation state has resulted in a system where the Legislative branch tends to pass rather vague laws creating certain regulatory bodies but then cedes to the Executive Branch or even to those bodies themselves the responsibility for crafting the laws/regulations required for fulfilling their stated purposes. Thus, rather than democratically enacting the legal scheme for regulating television, Congress creates a Federal Communications Commission:
The Federal Communications Commission regulates interstate and international communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia and U.S. territories. An independent U.S. government agency overseen by Congress, the Commission is the federal agency responsible for implementing and enforcing America’s communications law and regulations.Applying the Constitution rigorously and vindicating liberty entirely, would mean not permitting Congress to cede that authority for implementation, at least to the extent that it means letting an independent agency write laws itself.
The Justice marshals an impressive array of cases where we can see how this antidemocratic means of enabling big government results in a legal labyrinth of regulations that are so numerous, so fluid and so arbitrary that no citizen could ever hope to comprehend them all, resulting in exactly the sort of unjust dominance that republican liberty is meant to avoid. Not the least of the problems is that the agencies are subject to capture by the very groups they are meant to regulate, so that, while a neutral set of rules to govern beauty salons could conceivably make sense, we are instead left with rules favoring existing businesses that require umpteen hours of "training" before black women with a skill in demand are to be allowed to practice hair-braiding legally.
While it is easy to understand why we chose this path of least resistance as we developed greater regulation of the environment, the workplace, and so on and so forth, we have birthed a monstrosity that no one can fully comprehend and, therefore, no one should be bound by. The Code of Federal Regulations is not democratically derived, does not treat all equally, and, especially because agency interpretations of the code can be changed ex post facto, is arbitrary by definition. Taking the easy way out has led us right of a system of ordered liberty and the sort of government of laws not men intended by the Constitution.
It is as we turn to considering the Constitutional alternative that we can understand where we lost Justice Breyer. After all, a system where Congress got to weigh in on every Federal regulation would be much more burdensome and would be likely to result in far less regulation. If nothing else, the time constraints for Congress to read and pass as many regulations as the modern state promulgates would afford limits. So, if one prefers big government, the Constitutional alternative can hardly be attractive. But this no intellectually honest rationale for not requiring it. More importantly, the fact that a regulatory scheme that protects liberty--including Mr. Breyer's professed concern for democratic participation in rulemaking--would be cumbersome is not a proper concern of the Judicial Branch. If, as we often hear, tough cases make for bad law, how much worse must tough ways of governing make the law if we allow the Court to make that its main concern?
On the other hand, Mr. Gorsuch writes extensively about the importance of civic education, civility and democratic participation as vital to maintaining our Republic. These are all things Mr. Breyer would certainly agree with. This happy overlap ought give us some basis for believing that we could reduce partisanship, at least on the Court, if not nationally. but fairness requires us to look at how ostensible Originalsts likewise abandon the framework of republican liberty when it suits them, to arrive at their desired ends.
Justice Gorsuch has already dissented in a case stemming from Citizens United, joining Clarence Thomas, who believes that any limitation on corporate politicking is unConstitutional. But, if we return to our republican liberty framework, not only are corporations not persons, as the conservative majority in Citizens insisted, they are creatures of the legislature, created out of whole cloth to relieve individuals from the spectre of personal liability for the debts of business entities. To imagine that a benefit to individuals thereby makes the fiction created into an individual itself is deeply bizarre. And to hold that the creator of corporations can not restrict them as it chooses is judicial activism of the worst kind. And when something like 85% of the actual persons in America are supportive of the restrictions the most democratic branch chose to place upon its creations, an intercession by the Court can not be justified by Originalism, only by naked political preference (*), the sort of arbitrary decision Mr. Gorsuch is so worried about by the administrative state. We are back to fighting fire with fire without regard to what the flames consume.
Likewise, the Gorsuch/Thomas team joined in a dissent from denial of certiorari in a gun case, wherein they begin:
The Second Amendment to the Constitution guarantees that “the right of the people to keep and bear Arm[s] shall not be infringed.”At the point where you feel compelled to truncate the text of the 2nd Amendment in order to make your argument, you can't also pretend to be engaged in Originalism, which, at a minimum requires reading the text as written. Nor will it do to pretend that the fact that some sort of gun right is acknowledged in the 2nd, because, as we've noted, even some level of natural rights are necessarily conceded in any form of republican liberty. Let us turn to the other two legs of our liberty-based analysis and we find that gun restrictions are also supported by as much as 85% of the public, have been democratically adopted by our representatives, and apply equally to the entire citizenry. It is no surprise then that the Heller ruling that invented the right of individuals to keep handguns was itself qualified and yet still represented a radical departure from two hundred years of American jurisprudence. This is kind of the right's version of the left's Roe v. Wade, a desired decision unmoored from the Constitution and republic liberty. Each side likes to imagine existential threats that flow from allowing laws they don't like to stand and to see themselves as entitled to legislate from the bench to vindicate rights they wish were in the Constitution, but our liberties are best secured when the Judicial Branch limits its own role and leaves it to us to settle these thorny social policy questions. If Bob wants to carry a bazooka everywhere he goes and Sally wants to use abortion as birth control, let them convince their representatives to institute laws permitting same which apply equally to everyone. If the worst-case scenario for the Court refusing to arbitrarily enact my policy preference is that I have to work to get my fellow citizens to agree to it, or live under exactly the same legal regime that all of them are subject to, that seems an entirely reasonable and republican result.
(*)Think of it this way, a law that says no red head shall be permitted to contribute to political campaigns, fails constitutional muster for exactly the same reason that a law that held all red heads shall be exterminated does. But a law that did away with corporations would face no constitutional difficulties, so one limiting their political activities can not. Were the American people to determine that limited liability is a higher price to pay than the convenience of corporations is worth, the legislature could simply end the institution and businesses would have to find some other way of arranging themselves.
-WIKIPEDIA: Stephen Breyer
-BIO: Stephen Breyer (John R. Vile, June 2017, The First Amendment Encyclopedia)
-BIO: Stephen Breyer Biography (1938–) (Biography.com)
-BOOK SITE: Active Liberty (Penguin Random House)
-WIKIPEDIA: Active Liberty
-PDF: Active Liberty (Tanner Lectures)
-LECTURE: Our Democratic Constitution (Stephen Breyer, November 17, 18 and 19, 2004, Harvard University Tanner Lectures On Human Values 2004-2005)
The United States is a nation built upon principles of liberty - principles that include a democratic form of government. The French political philosopher Benjamin Constant understood the connection. He distinguished between liberty as understood by the ancient world, the Greeks and the Romans, and liberty as understood by the Nineteenth Century moderns.
-VIDEO: U.S. Supreme Court Associate Justice Stephen Breyer describes the interpretive principles explored in his book, "Active Liberty: Interpreting our Democratic Constitution." (Charlie Rose Show, 10/26/06)
-AUDIO INTERVIEW: 'Active Liberty' from Justice Stephen Breyer (Fresh Air, October 20, 2005, NPR)
-PROFILE: Supreme Court Justice Stephen Breyer shows progressive streak (David E. Bernstein and Josh Blackman, 7/12/11, Newark Star-Ledger)
-VIDEO DISCUSSION: A Conversation on the Constitution with Supreme Court Justices Stephen Breyer and Antonin Scalia (Federalist Society, Dec 5 2006)
-PROFILE: A Workable Democracy: The optimistic project of Justice Stephen Breyer (Lincoln Caplan, March-April 2017, Harvard Magazine)
-VIDEO: Active Liberty by Mr. Justice Breyer (The Ponen Mind, 12/12/05, PBS)
-INTERVIEW: Towards ‘active liberty’ (Robb London and Michael Armini, April 23, 2006, Harvard Law Today)
-INTERVIEW: Supreme Court Justice Breyer on 'Active Liberty' (Nina Totenberg, September 29, NPR: All Things Considered)
-LECTURE: On the Liberty of the Ancients Compared with that of the Moderns (Benjamin Constant, 1819)
First ask yourselves, gentlemen, what an Englishman, a Frenchman, and a citizen of the United States of America understand today by the word "liberty."
-STUDY GUIDE: Active Liberty (Enotes)
-ESSAY: Supreme Court Justice Stephen Breyer Shows Progressive Streak (David E. Bernstein and Josh Blackman, July 12, 2011, The Newark Star??Ledger)
-ESSAY: Active Liberty Lives!: Justice Breyer’s opinion in the recess appointments case deals a blow to originalism. (Adam Winkler, July 08, 2014, Slate)
-ESSAY: Active Breyer: Making the Liberal Bloc Work (Medha Gargeya, October 10, 2010, Harvard Political Review)
-ESSAY: AN ELASTIC AMENDMENT: JUSTICE STEPHEN G.BREYER’S FLUID CONCEPTIONS OFFREEDOM OF SPEECH (Benjamin Pomerance, Albany Law Review)
-ESSAY: Comparing and Contrasting the Constitutional Approaches of Justice Scalia and Justice Breyer: Through the Pending Supreme Court Case Schwarzenegger V Entertainment Merchants Association (Katherine E. Moran Ms.Claremont McKenna College)
-ESSAY: Breyer v. Scalia: Will Alito be an activist or a textualist? ( Julia K. Stronks, January 15, 2006, Seattle Times)
-ARCHIVES: "Stephen Breyer" (C-SPAN)
-ARCHIVES: Stephen Breyer (Charlie Rose Show)
-REVIEW: of Active Liberty by Stephen Breyer (Robert Bork, New Criterion)
-REVIEW: of Active Liberty (Cass R. Sunstein, The New Republic)
-REVIEW ESSAY: Conversation, Representation, and Allocation: Justice Breyer’s Active Liberty (Michael A. Livermore, D. Theodore Rave, NYU Law Review)
-REVIEW: of Active Liberty (Kathleen M. Sullivan, NY Times Book Review)
-REVIEW: of Active Liberty (Jeffrey Toobin, The New Yorker)
-REVIEW: of Active Liberty (Pierre Rosanvallon, International Journal of Constitutional Law)
-REVIEW: of Active Liberty (Richard A. Posner, Yale Law Journal)
-REVIEW: of Active Liberty (John DiLulio, Weekly Standard)
-REVIEW: of Active Liberty (Tom Feeney, National Review)
-REVIEW: of Active Liberty (Bernard G. Prusak, Commonweal)
-REVIEW: of Active Liberty (Jess Bravin, WSJ)
-REVIEW: of Active Liberty (Alykhan Velshi, New English Review)
-REVIEW: of Active Liberty (Intercollegiate Review)
-REVIEW: of Active Liberty (Publishers Weekly)
-REVIEW: of Active Liberty (Mark Rush, lawCourts.org)
-REVIEW: of Active Liberty (Ilya Somin, Northwestern Law Review)
-REVIEW: of Active Liberty ( Michael W. McConnell, Harvard Law Review)
-REVIEW: of Active Liberty (Adam Cohen, NY Times)
-REVIEW: of Active Liberty (Ken I. Kersch, The University of Chicago Law Review)
-REVIEW: of Active Liberty (Jerome Braun, Logos Journal)
-REVIEW: of Active Liberty (Perspectives on Political Science)
-REVIEW: of Active Liberty (George Will, Newsweek)
Book-related and General Links:
-REVIEW: of How Judges Think by Richard A. Posner (Gerald J. Russello, The University Bookman)
-ESSAY: Originalism: The Lesser Evil (Antonin Scalia, University of Cincinnati Law Review)
-ESSAY: Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution: This wolf comes as a wolf (Randy E. Barnett, APRIL 3, 2020, The Atlantic)
-WIKIPEDIA: John Hart Ely
-ESSAY: Common Good Constitutionalism? (Keith E. Whittington, 3.31.2020, The Volokh Conspiracy)
-ESSAY: Without the Pretense of Legislative Intent (John F. Manning, Oct 26, 2017, Harvard Law Review)
-ESSAY: Of Ballot Boxes and Bank Accounts: Rationalizing the Jurisprudence of Political Participation and Democratic Integrity (Mar 9, 2018, Harvard Law Review)
-REVIEW: of We the People: A Progressive Reading of the Constitution for the Twenty-First Century, by Erwin Chemerinsky (Charles Barzun, New Rambler)
Copyright 1998-2015 Orrin Judd