Breyer's Active Liberty

NPR today features an interview w/Supreme Court Justice Stephen Breyer about his new book, Active Liberty : Interpreting Our Democratic Constitution. The bits played on Morning Edition suggest that, although conservatives have been the ones to most vehemently denounce “judicial activism” and the evils of “legislating from the bench,” the conservative justices (primarily Thomas) have been the ones most likely to invalidate laws passed by Congress, while Breyer is the justice least likely to do so. (ACS Blog has the details of that study.) So I guess those who condemn judicial activists are really condemning Scalia and Thomas, huh? Yeah, right.

The full, hour-long interview w/Breyer is available for streaming, but the following are some highlights from my listen:

Breyer defines “active liberty” as a distinction between freedom guaranteed by law from the government (freedom of speech is freedom from gov't action to restrict speech), and another, more ancient concept, that citizens of a community will share legitimate authority in that community. He traces this latter idea back to the Greeks. The notion today is that each individual shares the power of authority—it's called democracy. He wants to stress “active liberty” because that democracy only works if the average citizen participates.

The judiciary's role is to recognize the importance of active liberty and to understand that the Constitution wants to create a set of institutions to enable people to decide things democratically. When deciding conflicts between majority and minority interests he says we should return to fundamental principles of democracy. So in the Michigan affirmative action case, Breyer argues that all the amici briefs from the business community, the military, educational institutions, etc., showed that the people wanted the diversity that affirmative action provides, so upholding the constitution was consistent with democratic principles. In other words, he's a big believer in majoritarian rule.

On campaign finance laws, he argues that there are speech interests on both sides of spending restrictions, but the laws have the objective of leveling the playing field to make more equal exchange possible. The first amendment exists in order to allow people to elect the kind of government they want, and certain forms of regulation are necessary to promote that kind of conversation.

Speaking of campaign finance laws, I recently and somewhat foolishly entered the debate on this issue over at Althouse and basically got schooled by Stealth Law Prof who, like Althouse, disagrees w/Breyer on this point. I still maintain that conflating dollars and political contributions with speech is dangerous and antithetical to the democratic process b/c it inherently privileges those w/the most money and we should do what we can to prevent that. But I'm not prepared to defend that position against conlaw profs so I'll have to leave it there.

Anyhoo, the Breyer interview is interesting, but disappointing b/c his explanation of his philosophy does not seem as rigorous or clear as I was hoping. Perhaps the book makes it more clear, or perhaps he is really just as deluded about what he's doing as Scalia is w/the difference being that I tend to agree more w/the outcomes of his delusions than I do w/the outcomes of Scalia's delusions.

That said, how cool is it that we can all listen to this complete interview whenever we want? Before the internet, all we could have had was the 5-minute radio version and we would have had to listen when the radio station chose to broadcast it. Now, we can listen to that 5-minute bit whenever we want, and we can listen to the full interview whenever we want, and that is just very cool.

Posted September 30, 2005 10:13 AM | law general