« Amusing note on definitions | Main | Warning re viruses »

Justice Breyer and Active Liberty

Just finished Justice Breyer's book "Active Liberty," and am thinking of writing a review. It's rare that we have this much insight into a Justice's thoughts (normally, we have to pick them out of opinions, covering narrow issues, and where the author had to accomodate the objections of up to eight other Justices).

The "Active Liberty" refers to what I suspect most of us would identify as non-liberty, that is the liberty of the government (seen as representive of the majority and hence the liberty of the majority) to make laws. Breyer thus sees "constitutional tensions," a two-sided affair with constitutional interests on both sides, in any constitutional case. To the extent that we rate a constitutional right as something especially weighty, something that is accorded weight beyond "there are good reasons to make this law," that tends to make the balance more level.

I'd suggest this levelling is not justified by history nor by good policy. It's clear from Madison's writings that the Bill of Rights was not seen as a broad array of commands, but as a narrow list of what were considered the clearest and most noncontroversial of rights. Madison didn't want the Bill tied up in a battle over details, or producing even more controversy. He worried that if religious rights were put to the test, they'd probably be narrowed (note that several states still had established churches and some had them into the 1820s). So the restrictions were narrow and carefully chosen. I'd suggest that they were intended, if not as absolutes, then as very close to the same. Yes, the majority, acting through the legislature, has its rights. But those end when the boundaries of the Bill of Rights are encountered. Which still leaves plenty of room for "active liberty."

As far as policy and changes -- the main change since 1791 has been the growth of governmental power, and at the federal level in particular. The federalists (including Madison at this time) were arguing that federal power was so limited that a bill of rights wasn't necessary... it might be appropriate for the more powerful state governments, but not for this new creature. You could hardly say that today. If anything, the changes suggest a need for a more vigorous protection of Bill of Rights liberties, not for their relaxation. Add to this the fact that the relation between the majority and the legislature has been steadily weakened, and with it accountability. Statutes as often as not prescribe only general policies and leave it to non-elected officials to decide exactly what the rules are to be. The officials themselves are not at all accountable to any majority -- your remedy if an unreasonable rule is imposed is to vote against the current president (who didn't make the rule and probably never heard of it) and elect a different chief executive (who can't unmake the rule, and likewise has never heard of it).

I can't help but wonder how Breyer is classed as part of the "liberal wing." His jurisprudence really hearkens back to Frankfurter, and maybe that's the answer. "Liberal" is of course an amorphous term. In the 1930s-40s it meant (in a judicial sense), "don't mess with the New Deal," i.e., with legislative powers. In that sense, Breyer would qualify. But during the 1960s-70s it also came to be associated with protection of civil liberties -- meaning for the most part, DO mess with legislative enactments and majoritarianism -- and in that sense Breyer is far from liberal.

Here's Gene Volokh's study of Supreme Court votes on free speech issues. Breyer comes in dead last in terms of backing freedom of expression. (Kennedy ranks No. 1, with Thomas in a tie for No. 2).

· General con law