Review of Active Liberty: Interpreting Our Democratic Constitution by Stephen Breyer. New York: Vintage, 2005. 161 pages. $12.95.

Reviewed by Alex Soto

            Since 1789 the United States have experimented with the idea that they can ignore Christ and yet get along well in the world. But the Father’s will for nations is clear: “Kiss the Son, lest He be angry, and you perish in the way” (Ps. 2:12). Of the many ways Christ has expressed His anger is by giving us civil leaders who abandon the rule of law. Though God chains down the behavior of magistrates by laws (Deut. 17:18-20), they desire to break free from these chains (Ps. 2:3). They desire to be gods.

            Up springs over these states united the “divine right” of the Supreme Court. Its interpretations are absolute. It apparently has no check. It has become in effect the supreme law of the land, as I was taught in college: “Basically, the law is what the Supreme Court says it is at any point in time.”[1]

            John Adams considered a republic as a government of laws and despotism as a government of men.[2] Which does Justice Breyer favor?

Justice Breyer

Active Liberty Theme

           Breyer sees the Constitution teaching several general objectives: “it avoids concentration of too much power in too few hands; it protects personal liberty; it insists that the law respect each individual equally; and it acts only upon the basis of law itself” (8-9). But above all, it teaches “that government is democratic” (8). This democratic objective of the Constitution he calls “active liberty” (4, 5), that is, “the freedom of the individual citizen to participate in the government and thereby to share with others the right to make or to control the nation’s public acts” (3). In short, active liberty is “participatory self-government” (46). He understands this active liberty theme as a central focus of the Constitution (32), indeed, it “resonates throughout the Constitution” (6) and is its “primary objective” (33). He tells us elsewhere that the Constitution does not insist on an omnipotent government solving all problems, but rather “trusts people to solve those problems themselves” (134).

           The Justice points to several factors showing the Constitution’s intention to create a participatory government (22-32): It rests sovereignty in the people, opening with the immortal words “We the People.” It vests all lawmaking power in Congress and all executive power in a President—offices bearing ultimate responsibility to the voters. And wanting none excluded from the ratification process, the special ratifying conventions required only minimal qualifications in its electors.

           Explaining how to interpret this supreme Law of the Land, Breyer describes the tools that all judges use (7-8):

1.     They read the language of the text.

2.      They take account of the history of the text’s language.

3.     They look to tradition, that is, how the language has been used by legislators.

4.      They examine precedents, that is, how the language has been understood by judges.

5.      They ascertain the law’s purposes.

6.     They consider the consequences of the interpretive alternatives.

And though all judges make use of these six tools, he explains that different judges emphasize some tools over others.

            His position seeks to apply both of what he calls ancient liberty and modern liberty (5). Ancient liberty is that active liberty described above, the people’s participation in the government. Modern liberty, on the other hand, is the citizen’s freedom from improper government interference. Ancient (active) liberty protects against apathy toward the government; modern liberty protects individuals from a tyranny of the majority.

            But while advocating both active and modern liberty, “I focus,” he tells us, “primarily upon the active liberty of the ancients” (5). He believes this focus occurs best by emphasizing the last two interpretive tools of judges: purposes and consequences (115). His position “identifies consequences as an important yardstick to measure a given interpretation’s faithfulness to these democratic purposes” (115). His active liberty theme therefore serves as a hermeneutical filter,[3] of which he subsequently applies to six issues: speech, federalism, privacy, affirmative action, statutory interpretation, and administrative law. We will consider only two.

Applied to Speech

           Active liberty allows speech that promotes democratic participation. Regulating all speech prevents free exchange of ideas, which is a democratic goal. A presumption of free speech, therefore, must exist for politically related speech. “Active liberty is particularly at risk when law restricts speech directly related to the shaping of public opinion, for example, speech that takes place in areas related to politics and policy-making by elected officials” (42).

           Speech subject to government regulations must be that which diminishes active liberty. A government allowing all speech “would prevent a democratically elected government from creating necessary regulation” (41). Since people are not dissuaded from political involvement by regulations on commercial or economic speech, such regulations are constitutional.

           Breyer illustrates by way of campaign finance reform. Unregulated donations diminish public participation in the political process because people presume the wealthy donors overly influence politicians and political parties. The average person believes his or her participation becomes useless then. Too many regulations, however, diminish modern liberty. Without adequate funding, political messages cannot get out. This, in turn, favors incumbents who have an established name. Thus too much and too little regulation deters participation. The first amendment, then, requires some governmental regulation of money donated to political campaigns. Consequently, courts should allow campaign regulations that “democratize the influence that money can bring to bear upon the electoral process” (47).

Applied to Affirmative Action

            Discussing affirmative action necessarily involves discussion of the Equal Protection clause of the fourteenth amendment. Breyer summarizes two basic interpretations: the color blind view and the narrowly purposive view. The first view sees the Constitution as opposed to race-based classifications. The second view, held by Breyer, does not prohibit all race-based laws. The Equal Protection clause aims to help historically disfavored races participate in the political process. The color blind view would not facilitate this. This clause demands some discrimination against historically favored races, as he quotes Justice Ginsburg, “to hasten the day when entrenched discrimination and its after effects have been extirpated” (78).

            To sum up Justice Breyer’s position: The Constitution’s main concern is “active liberty,” creating a government wherein its citizens participate. The interpretation of all laws—whether statutory or constitutional—best occurs by considering the law’s purposes and the consequences of the interpretive alternatives. If the law or interpretation in question brings about a participatory citizenry, it is constitutional.

Appraisal of Breyer’s Position

           When judges seek to raise their thrones above the stars of God, to make themselves like the Most High, true servants of God must deflate such aspirations, driving down their arguments to the grave, to the depths of the pit (cf. Isa. 14:13-15). We begin with Breyer’s minor faults.

Minor Faults

            First, the reader should be aware of his shifty use of language. Knowing that labels are half the battle in polemics, he at times speaks of infringement in freedom terms. For example, he says having strong pro-speech standards “would prevent a democratically elected government from creating necessary regulation” (41) by “imposing . . . too severe a restriction upon the legislature” (42). Since the legislature represents the people, he reasons, allowing the people too much speech would deprive the legislature of their power to muzzle commercial and economic speech. He forgets, though, that the people codified their will in the Constitution. Therein, the speech we call “free,” Breyer calls “anti-regulatory” (53). “Woe to those who call evil good, and good evil” (Isa. 5:20).

           Second, Breyer’s criterion for constitutionality—whatever encourages governmental participation—produces results condemned by the criterion. For instance, his approval of affirmative action (rightly or wrongly) is based on his interpretation of the fourteenth amendment (78-84). Yet though this interpretation might encourage participation in the minority race, it would simultaneously discourage participation in the majority race. Similar incoherence results from his decision to remove a Ten Commandments display from a government building (122-124). Such a removal undoubtedly discourages political participation by the religious community. In the end, then, Breyer’s criterion produces more discouragement than encouragement. His position gives birth to results that swallow up the position. “A fool is consumed by his own lips” (Eccl. 10:12).

            Third, Breyer’s active liberty criterion easily reduces to absurdity. For example, it is widely acknowledged today that two groups whose participation in the political process is minimal are youth and African-Americans. One could reasonably argue that this is due to the dominance of older white men in politics. Would not Breyer’s active liberty theme make old white men’s involvement in politics unconstitutional? Another example might be the checks and balances of our three branches of government that make it somewhat difficult to understand our governmental structure. Are the three branches of government then unconstitutional because their intricacy discourages many from political involvement? The consumption of alcohol, as well, would be considered unconstitutional because of its effect of deterring citizenship participation. How about people’s busy lifestyles that have no time for participation in the political process? Must we consider busyness unconstitutional?![4] God indeed “makes fools of judges” (Job 12:17).

           Fourth, the book vacillates between interpreting the Constitution according to the intent of its Framers and interpreting it according to new constructions placed on it by subsequent courts. Active liberty is “the most fundamental original intention of the Framers” (132; cf. 32), but then he seems to approve of the courts evolving the meaning of the Commerce Clause (94). So entrenched is Breyer’s belief that the Constitution means whatever the Supreme Court says it means that when he wishes to teach about an authority the Constitution grants, he does not cite the Constitution but rather a Supreme Court ruling (80). Thus he kisses the Framers to generate a position that ignores the Framers, but “the kisses of an enemy are deceitful” (Prov. 27:6).

Replaces Constitution’s Particular Provisions with His Own

           Here lays the major fault with Breyer’s book. The Justice correctly identifies the Framers’ general intention to produce a document encouraging governmental participation. To this end, though, they gave particular provisions to accomplish this general intention. But Breyer ignores, no, rather replaces his own homemade particulars for the Framers’ particulars given in the Constitution.

           For example, his active liberty filter gives to the federal government the power to dictate the working hours of businesses (10), to limit campaign donations (43-50), to restrict free speech to political speech (39-55), and to charter a national bank (10; 138n.9). But none of these powers have we the people given to the federal government, and “the powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people” (tenth amendment). Again: Breyer’s active liberty filter allows schools to positively discriminate in order to end entrenched racism. But since the Constitution does not permit the federal government to administer and fund schools, it is silent on how to regulate their student bodies as well.

           Judges must understand that what the Constitution teaches and what morality dictates do not necessarily equate. When they discover an issue that they think the government must address, rather than seeking an amendment (via Article V) they are tempted to read that need into the Constitution. Breyer too often succumbs to this temptation. By making the Constitution potter’s clay in the hands of judges, capable of molding and shaping it to fit their desires, Breyer’s position makes the amendment process unnecessary.

           He plays with language, indeed, to call “interpretation” a meaning foreign to the original authors. Would it please the Justice if his words were likewise “interpreted”? President Lincoln said it well: “the intention of the lawgiver is the law.”[5] For justices to ignore the lawgivers’ intent in favor of an indefinite general objective, or in favor of court precedents, does nothing less than create legislation, but “all legislative Powers herein granted shall be vested in a Congress of the United States” (Art. I, sec. 1), not in the Supreme Court. Ironically, the document the Framers created to bar tyrants, Breyer uses as a cloak for tyranny. He has, in effect, made his criterion more constitutional than the Constitution itself!

Conclusion

           But how should judges interpret the Constitution? And what can we do about judicial outlaws like Justice Breyer? Interpreting the Good Behavior clause provides answers to both of these questions. Article III, section 1 says: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour [sic].” Looking to an author’s interpretation of this clause gives us its definitive interpretation.

            In Federalist 81, Constitution author, Alexander Hamilton, answers the charge made upon the newly created document that “the power of construing the laws, according to the spirit of the constitution, will enable that court to mould [sic] them into whatever shape it may think proper” (essentially Breyer’s position!). “In the first place,” Hamilton responded, “there is not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the constitution.” Then he explains that “judiciary encroachments of the legislative authority” subjects the judiciary to “the important constitutional check, which [is] the power of instituting impeachments.” In other words, judges who usurp Congress’s power to legislate have violated the Good Behavior clause and are therefore liable to impeachment and removal from the bench.

            Hamilton’s interpretation of the Behavior clause dethrones the pernicious “divine right” of the Supreme Court. If judges can render unconstitutional rulings, then the Constitution does not mean whatever that court says it means. Dethroning judges, however, requires congressional backbone. The people must be the backbone of Congress. Our sluggishness must give way to true active liberty. We must impeach!

           Historian Paul Johnson writes: “Next to religion, the concept of the rule of law was the biggest single force in creating the political civilization of the colonies.”[6] Having abandoned the former, the latter followed. Active Liberty exhibits this abandonment nicely. If these United States wish to see again a nation ruled by laws, we must bow and kiss the regal ring of Christ.

Blessed is the nation whose God is Christ! (Ps. 2:12; 33:12)

NOTES